Photo by Tuur Tisseghem ()

Shannon Flynn is a Guest Writer and the Managing Editor of Rehack Magazine.

It is easy to overlook the relationship between physical security and intellectual property (IP). Just as video surveillance can help deter or provide evidence of people stealing physical property, it can do the same for IP. Cameras let companies monitor employee actions, protect data centres, or watch printers that may process sensitive documents.

Cameras can be a helpful tool, but they also raise a few concerns about liability. With that in mind, here are five facts about liability for video surveillance that you should know.

1. Video liability laws vary widely

Like many legal restrictions, video liability laws vary widely based on jurisdiction. For example, the state of Georgia permits video surveillance in both private and public settings so long as the cameras are in plain sight. In contrast, Canada requires you for covert surveillance to record in private places without people knowing.

If you are considering installing cameras in any setting outside your home, you should look at your specific area’s laws. What may be legal in one place could trigger serious legal issues in another. Knowing what you can and cannot do can help protect your IP while staying within your legal rights.

2. Installing cameras can limit liability

While installing a video surveillance system may appear to increase your liability, the opposite can be true in some cases. People in some situations, such as property owners leasing to tenants, may to provide some amount of protection. Installing cameras may arguably demonstrate that you are taking steps to do so, which may limit your liability if something happens.

Similarly, someone in charge of protecting a company’s IP may have a legal obligation to take reasonable steps towards that goal. It is worth noting that there is little precedent to demonstrate what precisely that duty entails outside of the person’s contract.

Some affected people may feel that installing cameras alone is likely not enough to remove all liability should a privacy breach occur. However, installing a video surveillance system can be a valuable part of a larger strategy and, along with other protections like data encryption and network access controls, may help limit liability in these situations.

3. Video with audio carries more liability

Not all forms of video surveillance carry equal weight in the eyes of the law. Most notably, cameras that capture audio as well as video are subject to stricter regulations since they must comply with audio surveillance laws as well. Employers , like protecting company IP, to install these systems. Depending on local laws, some amount of consent may be required as well. For example, in Canada, without the consent of those speaking or legal authority, like a warrant. You may be able to get permission to record audio, but you may have to appeal to local authorities.

Given these varying regulations, you may want to avoid video with audio, but if you think it’s necessary, be sure to check local laws first.

4. Recording without foreknowledge is sometimes permissible

It may seem like a given that you must let people know that you are recording them. While this seems like a reasonable expectation, some laws allow people in some contexts to set up video surveillance without anyone knowing.

For example, in Pennsylvania, people can without your knowledge. The same is true in many places, as public areas do not carry the same expectation of privacy as private property. Protecting your IP by setting up video cameras in the workplace is different. Organizations in Ontario that they are under video surveillance.

Laws aside, it may be best to let people know if you are installing cameras in an area out of respect for their privacy. If you are in public, regulations may be a bit more open, but remember that what constitutes a private place can vary based on jurisdiction.

5. Fake cameras can still create liability

The mere presence of cameras can deter crime since they make people feel like they are being watched, hence, discouraging them from taking suspicious actions. Given the potential for deterrence, some people may consider installing fake cameras to dissuade IP theft while avoiding surveillance-related liability. People may not realize that fake cameras may still create liability.

The presence of cameras, even if fake, can foster a sense of security, and if those feelings are false, it can create liability. People have for installing fake cameras when criminal actions took place. If you’re debating between fake and real cameras, remember that some amount of liability could arise either way.

Understand your liability before implementing video surveillance

Video surveillance can help secure your IP, but it can also establish some legal liabilities. Considering these consequences, make sure to inform yourself of your local laws before installing any cameras. Understanding relevant laws in your jurisdiction can help protect you against legal action.

The post 5 Liability Facts About Video Surveillance appeared first on IPOsgoode.

“Innocence of Muslims”

In 2012, producer Mark Basseley Youssef cast Cindy Lee Garcia, a struggling actress, in a minor role in the film “Dessert Warrior”, a production that would never come to fruition. Garcia’s performance would instead appear in a 13-minute controversial film released on YouTube entitled “”. ��The film portrayed the prophet Mohammed as a murderer and sexual deviant. Five seconds of Garcia’s previous work on Dessert Warrior were used in the film, and the clip was partially dubbed over so that she appeared to ask, “Is your Mohammed a child molester?”

It was only when the Muslim backlash began that Garcia realized what had happened.

The inflammatory film immediately sparked political controversy for its anti-Islamic content, causing outrage throughout the Muslim community. Garcia began to receive threats to her life, and petitioned Google to remove the content from YouTube. After Google refused her repeated requests, on the basis that she was not the copyright owner of the film, Garcia initiated legal action to obtain an injunction, requiring Google to take down the video on copyright infringement grounds.��

Decision by the United States Court of Appeals for the Ninth Circuit - Reconceiving Notions of Copyright Ownership

In a 2-1 decision, Chief Judge Alex Kozinski proposed that an actor’s performance in a film is copyrightable, when fixed, if it evinces some minimal degree of creativity. This statement appears inconsistent with , a longstanding authority on what it means to be an author. In that case, the court held that a creative contribution does not suffice to establish authorship of a movie. However, Kozinski argued that Garcia’s situation could be distinguished from Aalmuhammed, as Garcia was not asserting ownership over the whole work: “[n]othing in the Copyright Act suggests that a copyright interest in a creative contribution to a work simply disappears because the contributor doesn’t qualify as a joint author to the entire work.”

Despite the fact that Garcia conceded she had no creative control over the script or her performance, the majority held that Garcia likely has a copyright interest in her personal contribution, being “the portion of the film that represents her individual creativity.” Finding for Garcia, the Court ordered Google to remove all copies of “Innocence of “Muslims” from YouTube and every other platform within Google’s control. In addition, the order requires that Google take all reasonable steps to prevent further uploads of the film.

Most contributions to a motion picture are created as works made for hire (the US equivalent of works made in the course of employment under Canadian copyright law), which prevents the actor from claiming copyright in his or her performance. Alternatively, the filmmaker’s use of the actor’s performance will usually be permitted due to an explicit or implied license.�� As such, it may be a rare occasion where actors can claim copyright in their individual performance in a film.

Nevertheless, the different interpretations of the divided Court illustrates the uncertainty over the application of the law in this area.�� The majority found that Garcia had a copyright interest in her contribution, although the dissenting judge noted that Garcia was "an actress acting out a script that she did not write under the direction of someone else who provides all of the instruments, tools and leadership.” Characterized in this manner, it is difficult to see how Garcia’s performance jives with traditional conceptions of authorship and copyright-protected expression under both US and Canadian law.

The decision implies that anyone who contributes creative expression to a movie or other form of copyrighted work may have an independent copyright interest, which they can use as a sword against the work’s distribution and performance.

What’s the Big Deal?

To avoid liability and benefit from the safe harbor provisions in the US (DMCA), ISPs and OSPs (service providers) must abide by the legislation’s "notice and takedown" (NTD) rules under .�� Under the DMCA, service providers are required to prevent infringement by expeditiously taking down allegedly infringing subject matter when they receive an allegation of infringement from a copyright owner.[1]

While the Ninth Circuit’s take-down-and-stay order originally required Google to remove the film in its entirety, in response to Google’s objections, the Court later restricted the order to versions of the film that include Garcia’s performance. However, the tailoring of the order does not alter the fact that the Court’s novel approach to copyright ownership increases the burden on service providers in responding to allegations of copyright infringement under the DMCA.

The NTD system has already been heavily criticized for introducing a pre-judicial determination of copyright infringement on the part of service providers, who have no expertise in copyright law.[2] As a result, service providers will often remove content based on tenuous or unsubstantiated copyright infringement claims in an effort to immunize themselves from liability.

By expanding the scope of authorship to contributors who wouldn’t previously have been considered copyright owners, the Garcia decision forces online content platforms to ascertain which of the actors in a particular video have a legitimate copyright claim. As Andrew McDiarmid of the US Center for Democracy and Technology : “DMCA takedown notices from frustrated bit players, which last week would have been easily ignored as not coming from the copyright holder for the work, might now be honored for fear of litigation.”

Suppose an individual alleges infringement of their contribution to a copyrighted work and notifies the service provider, as Garcia did. ��Due to last week’s decision and the liability structure of the DMCA, rather than dispute the claim, that��service provider is much more likely to remove the entire work without bothering to determine the legitimacy of the person’s copyright interest or going through the hassle of removing only those segments pertaining to the claimant’s particular contribution. It seems reasonably inevitable that the Garcia decision, combined with the NTD regime, will prove to be a significant barrier to freedom of expression.

Such damaging repercussions may have been avoided under a notice-and-notice system of��service provider liability, such as the one implemented by the Canadian Under our Canadian scheme, service providers are not liable for infringement as long as they forward the notice from the copyright owner to its allegedly infringing end user. There is no requirement that the��service provider remove the disputed content. Under such a system, the consequences of the Garcia decision for service providers would be limited to the administrative hassle of forwarding significantly more alleged infringement notices from a greater pool of potential copyright owners. This is particularly noteworthy given that it may be easier for someone in Ms. Garcia's shoes to claim copyright infringement in Canada in light of and newly enacted , which contemplate the copyright interest of performers in certain circumstances.

Although a US decision, the Court’s ruling in this case may have a chilling effect for internet users and content creators worldwide, as the future of online expression and democratic dialogue is dangerously threatened under the notice-and-takedown provisions of the DMCA.

The post Garcia v Google Inc.: Copyright Ownership, ISP Liability and the Future of Freedom of Expression appeared first on IPOsgoode.

In the decision no. 11/2014 handed down on January 31st, the Audiencia Provincial Civil de Madrid has rejected Telecinco’s appeal against the judgement of the Juzgado de lo Mercantil dated 20th September 2010.

The proceedings concerned a claim for copyright infringement raised by Telecinco as a consequence of the posting of some videos on the YouTube platforms youtube.es and youtube.com.

The Court of First Instance had found that YouTube bore no responsibility for the publication of copyrighted materials, since it acted as hosting provider having no control over the contents posted by users through the use of its services.

The appeal decision establishes itself in the wake of the judicial efforts of EU Member States’ courts to determine upon which conditions ISPs should face the consequences of violations (including copyright infringements) committed by users.

The legislative framework in force in the EU, in fact, constituted by the Directive 2000/31/EC (E-Commerce Directive), contains provisions which are likely to appear dated and, to a certain degree, not consistent with the evolution of the technological scenario.

The Court of Justice of the European Union, in the leading case Google v Louis Vuitton (C-236/08 to C-238/08), has pointed out that the provisions governing ISPs liability must be construed in accordance with the ways operators actually perform their services. A crucial factor to determine whether the liability exemptions set forth in the Directive are enforceable, in the Luxembourg Court’s view, is whether the ISP in question does act in a purely passive way, i.e. as an intermediary.

Moving to the case, the appeal brought by Telecinco against the decision of the Juzgado Mercantil was based on different grounds.

First of all, Telecinco alleged that YouTube did actually operate as a content provider with an editorial control over the website. Then, the point was not whether liability exemptions were applicable or not, since the argument of Telecinco assumed that YouTube bore a direct responsibility, acting as a content provider.

In a nutshell, the attempt of Telecinco was to demonstrate that YouTube fell outside the scope of the service providers and, accordingly, could not avail of the provisions of the E-Commerce Directive.

To support this claim, Telecinco referred to some circumstances that were supposed to reflect the exercise of an editorial control by YouTube. Among others, it was pointed out that (i.) YouTube had obtained from the relevant collecting societies the licenses concerning copyright and related rights over certain contents; ��(ii.) YouTube had established a content regulation through the implementation of a policy that must be accepted by users; ��(iii.) YouTube had provided particular “Terms and Conditions of Service”; (iv.) YouTube selected the most popular contents and provided a classification of the contents in different categories.

According to the Court of Appeals, none of these circumstances support the assumption that YouTube was operating as a content provider. The fact, for instance, that YouTube had obtained licenses for the use of certain contents or that contents were classified in different categories, does not imply that it is acting in a non-passive way, in the sense required by the Court of Justice to exclude the applicability of the liability exemptions.

The second point raised by Telecinco was that, even if YouTube acted as a service provider, the liability exemption for hosting providers -entrusted to Article 16 of the Law 34/2002 (implementing the E-Commerce Directive)- was inapplicable. In the appellant’s view, even were Telecinco qualified as service provider, it would have nevertheless had actual knowledge of the existence of unlawful activities. Thus, Telecinco could not benefit of the liability exemption.

In this regard, the Court expressly quotes the reasoning of the Tribunal Supremo in a ruling of 2009 regarding the construction of the requirement of “actual knowledge”. In the view of the Spanish Supreme Court, the actual knowledge must be established not only “when a competent authority has declared the unlawful nature of the contents, ordered the removal or the blocking of the same and the provider has been noticed of such decision”. In fact, even the knowledge of the unlawful activities that a provider obtains indirectly or otherwise, regardless of the specific ways, is relevant.

In the case at stake, the Court points out that a notice was given by Telecinco to YouTube that copyrighted contents had been unlawfully uploaded on the website and that Telecinco’s mark was featured on the images of the concerned videos. Making reference to the judgment of the Court of Justice in the case ��’O��é���� (C-324/09), the Court of Appeals has clarified that the sole communication that a rightholder provides to the owner of a website noting the existence of violation may not suffice to establish the “actual knowledge” requirement. For instance, the notice could be not specific enough in defining the contents that amount to copyright infringements.

In the case at stake, the Court has found that nothing in the notices given to YouTube permitted to identify which contents were infringing Telecinco’s rights. Then, YouTube had no actual knowledge of the parts of the website that must be subject to removal or blocking as result of a copyright violation.

The third and last argument advanced by Telecinco claims for the imposition over YouTube of a system aimed at blocking the access to its services to the users involved in copyright infringements.

As regards this point, the Court of Appeals has referred to some decisions of the Court of Justice (Sabam, C-360/10 and Scarlet C-70/10, in particular) to conclude that such a system would (i.) undermine the protection of other fundamental rights enshrined in the Charter of Fundamental Rights of the European Union, and (ii.) be in contrast with the absence of a general obligation of control over ISPs.

In fact, any order directed to ISPs for the removal of unlawful contents in breach of copyright is not per se prohibited in the EU relevant law, but must respect the conditions set forth under the Directive 2001/29/EC and 2004/48/EC, further to the E-Commerce Directive.

Then, the Court has rejected the appeal and confirmed the decision of the Juzgado Mercantil.

In light of the arguments convincingly used by the Court, it is supposed that there will be no room for different rulings in the case in the future.

[The original posting of this can be found on the blog, MediaLaws: Law and Policy of the Media in��a Comparative Perspective.]

The post News on ISPs liability from Spain: YouTube not responsible for infringements of copyrighted materials. The second chapter of Telecinco v YouTube appeared first on IPOsgoode.

In the case, Mrs. Trine Sig ceased her employment as a sales and marketing assistant at Verstergaard. Along with two other former employees of the company, she formed companies to manufacture and commercialize insecticidal bednets (a product made by her former employer). Within the suit filed by Verstergaard for misuse of trade secrets, the evidence demonstrated that Mrs. Sig, while contractually obligated to maintain the confidentiality of the information and knowledge acquired while working for the company, (i)��did not have any access to technical information related to the production process of Verstergaard´s insecticidal bednets during her period of employment, and (ii) did not appreciate that the new companies misused Verstergaard´s trade secrets when developing their own products.

Given these facts, the first-instance judge .�� The judge reasoned that “a person can be liable... even if he is not conscious of the fact that what he is doing amounts to misuse of confidential information”. From this judgment, the subjective mind of the offender (actual knowledge of the trade secret and awareness of the infraction) plays little, if any, role in determining personal liability. Instead, objective knowledge of the infraction (the possibility of having access to the trade secret) in conjunction with strict liability terms implied in the contract were enough to find Mrs. Sig liable.

This decision was , which did not recognize an implied term imposing strict liability and held that there was “no business reason to imply a term of that harsh extent”. This appeal decision was upheld by the UKSC, which stressed the relevance of the previous knowledge of the trade secret by the offender and of his consciousness in the misuse of the trade secret:

“Given that she did not learn of any relevant trade secrets owned by Vestergaard when she was employed by them, and did not appreciate that any such secrets were being used by an employee of the company of which she was a founder and director, it would be oppressive to hold Mrs Sig (as opposed to the employee or the company) liable to Vestergaard for breach of confidential information, whether or not she had previously worked for Vestergaard pursuant to a contract containing a standard sort of provision aimed at protecting Vestergaard's trade secrets”.

This decision by the UKSC raises questions about objective and subjective knowledge in cases of liability for misuse of trade secrets -��the answers to which do��not enjoy sufficient legal certainty in several countries. In fact, the regulations on trade secrets at the international level do not specifically cover the extent to which parties should know of a misuse. Article 39.2 , for example, in which the protection of trade secrets is codified, does not provide details on the level of duty of care the offender would owe to escape liability. At the national level, the in the USA and Canada does not specifically rule which are the cases where a person "has reason to know" that a trade secret has been misused. In view of this uncertainty, the legislature and the adjudicators are charged to form plausible solutions from general principles of justice, which may lead to discrepancies from the applicable provisions.

In my opinion, the decision of the UKSC is equitable and appropriate.

From a legal perspective, the decision does not allow the involuntary extension of objective knowledge of breach of contract to situations in which the potential offender did not have access to confidential information and is completely unaware of trade secrets being misused. If a party does not have any knowledge of the trade secret and of their misuse, then there is no duty of care with respect to confidentiality and, therefore, that party cannot be held liable. In this case, the implicit and explicit obligations under the contract are recognizable by all parties, fully observing basic contractual principles.

At an economic level, the different interests involved in the protection of trade secrets have to be balanced in order to achieve a fair solution. On the one hand, we can not ignore the importance of the protection of trade secrets for the purpose of encouraging innovation and maintaining competitiveness in small and mid-sized companies in the market, for which intellectual property rights (like a patent) might be too costly to manage. In this sense, the European Commission stressed in its that “the protection of confidential business information as a trade secret is, for many businesses, often the only or the most effective way to protect their intellectual property” (see also ). Appropriate legal protection of trade secrets is therefore economically efficient and desirable.

On the other hand, the protection of trade secrets naturally restricts horizontal competition, since competitors may not use trade secrets obtained improperly to develop competing products and projects. An excessive protection of trade secrets��may stifle competition unreasonably, which is contrary to the purposes of competition law, and induces economic inefficiency. This, in addition to imposing strict liability for misuse of trade secrets may have negative impacts on the economy. In view of this, the UKSC held in this decision��that “the law should not discourage former employees from benefiting society and advancing themselves by imposing unfair potential difficulties on their honest attempts to compete with their former employers”.

Therefore, the subjective knowledge of the potential offender have to be considered, in order to observe the contractual principles of law and to achieve an fair economic balance of different interests when dealing with the protection of trade secrets.

Pedro Henrique Dias Batista is an IPilogue Editor and a PhD student at Ludwig Maximilian University of Munich.

The post Beyond Knowledge and Consciousness – The Development of Liability for Misuse of Trade Secrets in the UK appeared first on IPOsgoode.