Category: Media law and intellectual property

The Home Office wants to reform Official Secrets law by pretending journalism does not exist

Over at the Guardian there is an important article – which is also worth reading just for its byline

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A rare sighting in the wild of Duncans Campbell

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The article in turn refers to this government consultation document.

The document is interesting (and worrying) in many ways – but one significant feature is how it shows the state has realised that the old state secrecy model in unsustainable in the new technological and media context.

The concern primarily used to be about what could be done by means of espionage.

And this generally made sense, as the means of publication and broadcast were in the hands of the few.

Now the bigger threat is mass-publication to the world.

This is a particularly striking passage (which I have broken into paragraphs):

“…we do not consider that there is necessarily a distinction in severity between espionage and the most serious unauthorised disclosures, in the same way that there was in 1989.

“Although there are differences in the mechanics of and motivations behind espionage and unauthorised disclosure offences, there are cases where an unauthorised disclosure may be as or more serious, in terms of intent and/or damage.

“For example, documents made available online can now be accessed and utilised by a wide range of hostile actors simultaneously, whereas espionage will often only be to the benefit of a single state or actor.”

Unauthorised disclosure is, of course, at the heart of investigative journalism – indeed some define news as being what other people do not want to hear.

And there is already an offence in respect of unauthorised disclosure by third parties.

But that offence was enacted in the happy halcyon days of 1989 – the year incidentally that the WWW was conceived.

A time where the technological extent of unauthorised disclosure was Spycatcher being published as hard copy books in Australia.

So to a certain extent, the consultation paper is not new: the state still wants to control and prohibit what unauthorised third parties can disclose to the world.

What has changed, however, is the scale of potential disclosures – and that also has changed the priority of dealing with such onward disclosure.

But, as the Duncans Campbell aver, this reorientation of the law of official secrets needs to accord with the public interest in accountability and transparency.

In the consultation paper, ‘journalism’ is not mentioned – and ‘journalist’ is mentioned in passing twice.

The role of the media – and the rights and protections of those who publish information to the world – should instead be integral in any sensible regime of official secrets.

Else we will have the spectacle of the 2020s equivalent of the misconceived and illiberal (and preposterous and futile) Spycatcher injunctions of the 1980s.

Not having proper regard to the public interest in transparency and accountability in the making of any public policy – and especially in respect of national security and official secrets – means you have to deal with these foreseeable concerns later.

Journalism does not go away, just because you do not mention it and pretend it is not there.

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From 1984 to Miss Minutes: the surveillance state is watching you, and there is little or nothing at law you can do about it

19th July 2021

One of the many pities about Nineteen Eighty-Four being too familiar a book is that one can overlook the care with the author of the story constructs the world of an intrusive surveillance state.

The author, a former police officer, does this briskly and subtly.

First he takes the central character through a hallway where a poster has face that is – metaphorically – ‘watching you’.

Then you are told:

‘In the far distance a helicopter skimmed down between the roofs, hovered for an instant like a bluebottle, and darted away again with a curving flight. It was the police patrol, snooping into people’s windows.’

So you are being watched – not metaphorically – from the outside.

And when the character enters his flat:

‘The telescreen received and transmitted simultaneously. Any sound that Winston made, above the level of a very low whisper, would be picked up by it, moreover, so long as he remained within the field of vision which the metal plaque commanded, he could be seen as well as heard.’

You are also thereby being watched – and again not metaphorically – from the inside.

We are still fewer than 700 words into the novel, but the author has already depicted the claustrophobic predicament of living in a surveillance state.

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Today’s Guardian has set out in a number of articles the extent to which such a surveillance regime is now translated from a literary text into social and policy reality.

None of this is surprising.

And none of this is new: the author of Nineteen Eighty-Four easily imagined such things in the 1940s.

What has not changed is the want of those with political control to have such power.

All that has changed is that those with political power now have access to the technology that enables them to have that power.

But perhaps unlike the state in Nineteen Eighty-Four, those with power do not proclaim from posters – in hallways or otherwise – that we are being watched.

And instead of it being on a big screen on your wall, you willingly and casually carry the means of this intrusion around with you.

Indeed, you are probably looking at that very device this very moment.

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From a constitutional and legal perspective, the obvious issues are the extent to which – if at all – there is any accountability for the use of these powers and the extent to which – if at all – there is any regard for human rights and civil liberties.

And as this blog has previously averred, there is very little accountability and transparency for those with political power even for things which are in the open and without the daggerful cloak of ‘national security’.

Indeed, even cabinet ministers have realised recently that they are under surveillance in their own offices with no control over that surveillance and the uses to which it will be put.

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The one welcome, fairly recent development is that this surveillance state is now (nominally) on a lawful basis.

Each power and exercise of power by the state has to be within the law.

But.

Two things.

First: such is the lack of real accountability and transparency, it makes no difference to the surveillance state whether it is within the law or not.

Even when there is something that is known-about and contestable, the deference of our judges when ‘national security’ is asserted is considerable.

Our judges may not use gavels – that is a myth – but they may as well use rubber-stamps.

And second: public law, well, only covers directly the actions and inactions of public bodies.

But as today’s Guardian revelations show, the software and technology comes from the private sector and there is little or nothing that can effectively regulate what private entities can do with the same means of surveillance.

Public law bites – to the extent that there are teeth attached to a jaw capable of biting – only once the technology and data are in the hands of public bodies.

It is a depressing situation – and not one which can be easily addressed, if at all.

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This blog has been criticised that it does not provide solutions to the problems that it describes and discusses.

But sometimes predicaments do not have ‘solutions’.

It is a tidy human habit of mind to conceptualise matters of concern as ‘problems’ – for that often implies there must be solutions.

Once you say a thing is a problem you usually are half-way to suggesting that there must be some solution.

But the predicament of those with power having greater and greater control by means of technology may not have any natural limit.

Each update and upgrade just making it easer for those with public and private power to intrude and invade.

Imagine reboots, stamping out your data – forever.

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How Neil Gaiman kept control of the Sandman characters

8th June 2021

How can a creator keep control of the characters they create when the intellectual property in those characters are owned by others?

In the DC and Marvel universes there are thousands of characters, the intellectual property rights in which are owned and exploited (and tightly policed) by the relevant corporations.

Usually the creators – writers and artists – will be subject to contractual provisions that assign the intellectual property rights in the characters they create to the corporation hiring them for their work.

(Note that there is not really an ‘intellectual property right’ in characters as such – what we are talking about here is a mish-mash of copyright, trade marks and other legal rights that, taken together, mean that the rights holder can prevent anyone else from using the character.)

Much of the time this does not cause any problems.

But it means that usually creators lose control of their creations – and sometimes this can be rather a shame.

For example, Jack Kirby radically extended the DC universe with his New Gods – but now the characters he created are just part of the DC universe, and Darkseid is just another supervillain among others.

Alan Moore and Dave Gibbon’s Watchmen characters – who were carefully placed in their own self-contained world – have now also (and regrettably) been put into the DC universe, and Dr Manhattan is now just one super-duper powered character among others.

But.

There is one group of characters owned by DC that have not been absorbed into the wider universe and made available for other writers and artists to exploit.

These are the Sandman characters created by Neil Gaiman (and various artists).

The character ‘Death’ has not become a member of the Justice League, and “Destruction’ has not been brought out of retirement to battle with Darkseid and Dr Manhattan.

The Sandman world has somehow kept its integrity – even though (a) it would be commercially valuable for DC to exploit the characters in other titles and (b) nothing at law could stop DC from doing what it likes with its characters.

So why has the Sandman world not gone the way of the New Gods and Watchmen and been squeezed dry by the Warner corporation (that owns DC) seeking to maximise profits from its assets?

This has long puzzled me.

And so I asked Neil Gaiman himself:

https://twitter.com/davidallengreen/status/1322151527146909697

And – wonderfully – he replied and at length – and the reasons are interesting:

‘It goes in several stages (and could go away tomorrow).

‘1988-1992 Sandman was selling. Nobody quite knew what I was doing. Whatever it was it was working. I had no power or control, but DC people were fans and Dave McKean and I had won a battle not to have Morpheus on covers.

1992-1994 Vertigo happened, and Sandman was the Vertigo flagship title. People wanted to know what would happen when Sandman was done, and I’d explain that if DC let it end then, I’d keep working with DC. If not, I wouldn’t. And the powers at DC wanted to keep me on board. And graphic novels collections of ongoing comics were, as of The Doll’s House, a thing. And they were selling and selling. So the loss of an ongoing comic wasn’t a disaster.

‘1995-2015 Sandman is allowed to end. I do occasional books for DC. In 2003 ENDLESS NIGHTS is the first graphic novel to turn up on the NYT bestseller list. Paul Levitz (and Diane Nelson, when Paul leaves) and Karen Berger, and when Karen leaves, Shelly Bond are always supportive.

‘Meanwhile many attempts to make Sandman movies and TV happen and fail, without my involvement.

‘Warners was always aware that Sandman is, in their words, a jewel in the crown, and once Good Omens had happened, and they realised that I knew what I was doing in TV more or less, they realised that it would be better for Sandman if I were actively making it.

‘I’ve always been aware that they own the characters I created for them when I was 26, and legally can do whatever they want with them.

‘But I’ve tried to make it a more attractive proposition for them to work with me than to end the working relationship, and they’ve always stepped up.’

[Lightly edited – the original tweets are here.]

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This is absolutely fascinating from an intellectual property law perspective.

Scheherazade-like, Neil Gaiman used commercial and creative imperatives to keep achieving what he could not enforce at law.

And Warner has had the wit and sense not to just exploit these particular assets in the way they had done with the Watchmen characters.

(Though the recent Watchmen television series shows how allowing another great creator access to prized characters can sometimes work well.)

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There is a misconceived notion that intellectual property rights in characters (and not just comic book characters) always have to be exploited to the full.

Had Warner freely exploited the Sandman characters as it had done with others, we would now be unlikely to have the upcoming Sandman series with Neil Gaiman as show-runner.

Sometimes holding off exercising legal powers leads to better outcomes.

For, as the eminent jurist Benjamin Parker always averred, with great power comes great responsibility.

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Colin the Caterpillar and the Art of War – why it is sometimes sensible not to enforce your legal rights

17th April 2021

Marks and Spencer has decided to add to the gaiety of the nation by issuing a legal claim in respect of Colin the Caterpillar, a chocolate cake.

The actual legal claim does not appear to be publicly available, but the news reports are that the action was launched in the last week at the high court.

Marks and Spencer is quoted as saying:

“Love and care goes into every product on our shelves. So we want to protect Colin, Connie and our reputation for freshness, quality, innovation and value”. 

It must have seemed a good idea at the time.

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Hilarity has ensued.

The respondent to the claim, Aldi appears not to be taking the legal threat seriously.

And nor are many people on Twitter and other social media.

This mash-up of our old friends at Handforth parish council stood out in particular:

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This has all the signs of a publicity disaster for Marks and Spencer.

So why did Marks and Spencer issue the claim?

And what should the company have thought about before bringing the action?

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There is no doubt that Colin the Caterpillar is valuable to Marks and Spencer.

The product has recently celebrated its thirtieth birthday.

And Marks and Spencer have been long aware of competitors’ selling similar products, with the store itself telling us this on its dedicated Colin the Caterpillar page:

“We were the first to retailer to sell a caterpillar, with many supermarkets since trying to emulate this crowd-pleasing cake”.

Colin also has his own Wikipedia page.

And not only does he have these pages, he also has registrations on the trade mark registry.

(Trade mark has two words, by the way – we are not Americans, thank you.)

From a quick (no-exhaustive) search, it would appear that the term ‘Colin the Caterpillar’ was registered in 2009 – though given it had been on sale previously it may have had other intellectual property protection beforehand.

 

This search also showed that last year in 2020 there was a further registration for Colin’s packaging:

The happy news can also be revealed that Marks and Spencer has also registered the term Connie the Caterpillar – though not her packaging.

All three registrations are in respect of class 30:

These registrations in practice and in principle confer a commercial monopoly in products within that class.

(Please note: although I have general knowledge of trade mark law, I am not a trade mark specialist, and there will be things I will have missed – and I am happy to hear from any trade mark specialists in the comments below.)

Here it is important to note that what is protected with these registrations is the name and the packaging of the cakes – and not the cakes and their ingredients themselves.

Colin the Caterpillar and his box are protected, not the concept of a chocolate roll with a happy face on it.

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One of the problems with trade mark law and practice is, in very general terms, that if a protected thing becomes too generic, you can lose the legal protection.

That is why trade mark holders often seem over-vigilant in asserting their legal rights.

Disney for example will assert their rights fearlessly, despite the ridicule and opprobrium.

Readers of a certain age will also remember letters to the press from Portakabin.

No doubt Aldi itself has its own trade mark lawyers who will send out stiff letters to infringing competitors.

(Indeed there are marks registered to various Aldi entities that presumably they would want respected.)

And as Marks and Spencer itself admits on its own website, there are other stores seeking to ’emulate’ the Colin cake.

One tweeter helpfully provides us with examples:

As does another:

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So: the commercial predicament of Marks and Spencer was as follows.

The company had a popular, valuable and distinctive well-established product.

This was a product that took expense to make and also to promote.

The product was protected with registered trade marks for both its name and its packaging (as well as, no doubt, other intellectual property protections such as ‘passing-off’.)

The company faced competition from other stores with similar products.

Some of these rival chocolate caterpillars had similar names and packaging.

What was a company in that position do?

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Here we come to the old distinction between having a legal claim and asserting it.

In essence: just because you have a legal right, it does not necessarily follow that it should be asserted or enforced.

And if a decision is made to assert and enforce a legal right, you have to think through the implications and reactions.

Some companies like Disney will know there is a negative reaction to their enforcement of legal rights – but in such cases the cost-benefit analysis is that the rights are too valuable to lose to the public domain.

And such a robust approach is common in industries where the commercial value is largely in intellectual property.

A cartoon mouse and a portable cabin are not especially complicated things – so what is bought, sold and licensed is often the intellectual property of thing, rather than the thing itself.

And much the same can be said of a long chocolate roll decorated with sweets and icing.

One can imagine how the commercial and legal teams at Marks and Spencer knew that competitors with products with similar names and packaging was creating a commercial and legal risk.

It may well be Cuthbert today, but tomorrow it could be Colvin, and before they knew it there would be Colin the Caterpillars everywhere in every store.

And Colin the Caterpillar’s registration renewal was coming up in 2028. 

What else could they do?

#SaveColin

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But.

They should have thought it through.

Presumably there had already been pre-action correspondence between the parties – it is rare for a company to issue a claim in the high court without setting out the case first in correspondence, and there are costs implications if a party does.

And presumably Aldi had denied the claim in correspondence.

Aldi thereby knew what was coming – and not only its commercial and legal departments, but also its media teams and external PR advisers.

Marks and Spencer do not appear to have issued a press release about the claim, but somehow, some way the media soon knew about the claim.

Perhaps this was because of a vigilant court watcher, or a tip-off from somebody, or even part of a media strategy: who knows.

But once the claim was issued at the high court, the dispute went from one set out in private and confidential correspondence between the parties – and into the public domain.

In essence: you lose control of the story.

And when the story is as media-friendly as about chocolate caterpillars called Colin and Cuthbert then there is a high probability that the media will become aware.

But from the news reporting it seems that Marks and Spencer have been caught unawares – while the Aldi press office is having a party with social media generally.

So the question has to be asked: was/is protecting the Colin the Caterpillar name and packaging worth it?

Unlike a cartoon mouse or a portable cabin, Colin the Caterpillar does not go to the heart of Marks and Spencer.

Had Aldi promoted an own-brand range of goods called, say, St Michelle then that would have been different.

And – and I defer here to trade mark lawyers – it may have been perfectly possible to renew the trade mark in 2028 even taking the (current) challenge of Cuthbert at its highest.

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A view had to be taken on the risk of litigation against the risk of not litigating.

As the Art of War showed (and that is still the best practical guide to civil litigation) being able to attack is not the same as it being a good idea to attack.

Here one can ask McDonalds about McLibel – or the British Chiropractic Association and its illiberal and misconceived claim against Simon Singh.

And if the decision is made to litigate then a claimant must be prepared for what can happen next – in terms of commercial and media matters, as well as at law.

This is not to say that people and companies should not assert and enforce their legal rights – indeed, that is what legal rights (and lawyers) exist for – but that the decision to do so is always distinct and separate from being able to do so.

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Declaration: as the blogger ‘Jack of Kent’ I helped co-ordinate the defence campaign in British Chiropractic Association v Singh and I practise in media law as a solicitor, although not in respect of chocolate caterpillars or supermarket stores.

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