Speedy ECJ puts the boot into Belgian public lending right

You don't need to be an
Hercule Poirot to
detect that there's a
problem with the
Royal Decree
The Third Chamber of the Court of Justice of the European Union gave judgment today in Case C-271/10 Vereniging van Educatieve en Wetenschappelijke Auteurs (VEWA) v Belgische Staat, a reference for a preliminary ruling from the Belgian Raad van State. Considering that this reference was only made in May last year, a ruling from the ECJ is mighty speedy. Is the Court in training for the Olympics, wonders Merpel.

Perhaps one reason why the ruling came out so quickly is that the question at stake was not so difficult. The Court's decision might even have been made easier by the absence of an Advocate General's Opinion. Anyway, the background to the ruling runs as follows. VEWA, a Belgian copyright management society, brought an action in the Belgian courts to annul the Royal Decree of 25 April 2004 on remuneration rights for the public lending of authors, interpreting or performing artists, phonogram producers and producers of the first fixation of films [that's its full title]. According to VEWA, by fixing a flat rate of remuneration of 1 euro per person per year, Article 4 of the Royal Decree infringed the provisions of Council Directive 92/100/EEC of 19 November 1992 on rental right and lending right and on certain rights related to copyright in the field of intellectual property [another over-long name ...] which require that ‘equitable remuneration’ be paid in respect of a loan or rental.

The court wasn't sure what to do. It noted that Articles 4(1) and 8(2) of Directive 92/100 referred to ‘equitable remuneration’, whereas Article 5(1) simply mentioned ‘remuneration’ and was concerned that, while the ECJ had already interpreted the concept of ‘equitable remuneration’ in Article 8(2) in Case C-245/00 SENA, it had not yet ruled on the concept of ‘remuneration'. It therefore asked for a preliminary ruling on this question:
‘Does Article 5(1) of [Directive 92/100], now Article 6(1) of [Directive [2006/115], …, preclude a national provision which sets the remuneration at a flat rate of [EUR] 1 per adult per year and of [EUR] 0.5 per minor per year?’
In an agreeably short expected and disagreeably inconvenient ruling today, the ECJ held as follows:
"Article 5(1) of Council Directive 92/100 ... precludes legislation, such as that at issue in the main proceedings, which establishes a system under which the remuneration payable to authors in the event of public lending is calculated exclusively according to the number of borrowers registered with public establishments, on the basis of a flat-rate amount fixed per borrower and per year".
So it's up to the Belgian legislature to come up with something less arbitrary, says the IPKat, and a little fairer too. As the ECJ stated:
"40. In the case in the main proceedings, ... the system established by the Royal Decree takes into account the number of borrowers registered with public lending establishments, but not the number of works made available to the public. Such a taking into account does not therefore have sufficient regard for the extent of the harm suffered by authors, or for the principle that those authors must receive remuneration that is equivalent to an adequate income ....

41 Furthermore, Article 4(3) of that decree provides that, where a person is registered with a number of establishments, the remuneration is payable only once in respect of that person. In that connection, VEWA submitted, in the course of the public hearing, that 80% of the establishments in the French Community in Belgium declare that a large number of their readers are also registered with other lending establishments and, consequently, that those readers are not taken into account for payment of the remuneration of the author concerned.

42 In those circumstances, that system may have the result that many establishments are, in effect, almost exempted from the obligation to pay any remuneration. Such a de facto exemption is, however, at variance with Article 5(3) of Directive 92/100, as interpreted by the Court, according to which only a limited number of categories of establishments potentially required to pay remuneration pursuant to Article 5(1) are capable of being exempt from that payment ..".
The IPKat extends his heartiest congratulations to the two Patents Court judges whose elevation to the Court of Appeal for England and Wales has just been announced.  They are:
Sir Kim Martin Jordan Lewison (59, called to the Bar (Lincoln’s Inn) in 1975 and took Silk in 1991. He was appointed as an Assistant Recorder in 1994, as a Recorder in 1997, as a Deputy High Court Judge in 2000, was made a Bencher in 2003 and was appointed as a Member of the Competition Appeal Tribunal in 2004. He was appointed to the High Court (Chancery Division) in 2003 and was a Chancery Supervising Judge between 2007 and 2009. Mr Justice Lewison was Knighted in 2003.
Previous convictions include Confetti Records v Warner (the "shizzle my nizzle" case, in which the learned judge found that rap was a foreign language, and O2 v Hutchinson -- one of the longest trade mark judgments of the pre-Arnold J era ...
Sir David James Tyson Kitchin (56), who was called to the Bar (Gray’s Inn) in 1977 and has been a Bencher since 2003. He took silk in 1994 and was a Deputy High Court Judge from 2001 until his appointment as a Judge of the High Court, Chancery Division, in 2005. He has been Chancery Supervising Judge for the Wales, Western and Midland Circuits since 2009. Mr Justice Kitchin was Knighted in 2005.
Previous convictions include Generics (UK) v Daiichi Pharmaceuticals, for those who love SPC cases, and Twentieth Century Fox v Newzbin, where he made some useful comments about authorising, procuring and other copyright infringement 'assists'.

Merpel wonders who now will fill the empty seats in the Patents Court. Options include (i) the recycling of existing non-IP Chancery judges who are under-utilised or bored with their lot (Lord Justice Lewison is himself a recycled judge, and there have been others), (ii) promoting a senior member of the patent bar who can afford the pay-cut, fancies a change of garb and doesn't mind his every word being scutinised by the blogging community, (iii) opting for an IP litigation solicitor for a change, since there are some impressive examples of this species around at the moment and (iv) not adding to the remaining judges but giving them freer rein in case management conferences and giving them a per-case bonus in addition to their salaries.  A further option is to appoint another couple of judges to the Patents County Court as a statement of intent to shorten the Patents Court list and have far more cases heard at the lower, cheaper level. 
This wasn't quite what the IPKat
meant about an inside story ...
One reason why patent cases are usually easy to blog about than trade mark cases is that the names of the parties are generally quite different from each other.  Woe to the blogger who gets the parties the wrong way round, as was the danger in United Airlines Inc v United Airways Limited, not yet on BAILII, a decision from last Friday in the High Court (Chancery Division), England and Wales.  If you find the identities of the parties here a little confusing, that's because they are -- as Mr Justice Vos so held.

So what happened here to cause Vos J -- the only judge in the Chancery Division, and one of only two judges in the entire High Court, to possess a three-letter surname -- to reach this conclusion? The story goes like this.  United Airlines is a well-known US airline.  United Airways Bangladesh Limited, to give the company's full name, is a less well-known Bangladeshi airline.  Said United Airlines, United Airways was both passings itself off and infringing its UNITED and UNITED AIRLINES trade marks by employing the abbreviated term UNITED AIRWAYS, in either English or Bengali script, on its seven-aircraft fleet in flights between Dhaka and London from 2009.

Leaving no trade mark stone unturned, United Airlines sought summary judgment and alleged pretty well every kind of infringement known to European man -- same mark/same services; similar mark/same services and a likelihood of confusion and takng unfair advantage of its reputed marks without due cause, thereby diluting them.  No way, said United Airways: the marks didn't look alike; the airlines were different, flew different routes and had different point-of-sale outlets; consumers wouldn't be confused and in any event could do their own research if they wanted to check, and so on.

Vos J granted United Airlines' application for injunctive relief straight off on the basis that there was no way that any defence to the action could succeed.  In his view it was obvious that the parties' respective marks were not truly identical since the bits after the word "United" were different.  However it has to be asked whether, on a global appreciation, the differences were so insignificant that they might go unnoticed by the average consumer, this being a question of fact [how good it is to see that, after over 20 years of harmonised trade mark law in the EU, there are still questions of fact and that this test has not been relentlessly hammered into a question of law]. "AIRLINES" and "AIRWAYS" were not synonymous but, when looked at from the point of view of an average consumer, they effectively conveyed the same meaning. This being so, the average consumer, being unconcerned with corporate identity, would be as likely as not to consider that the Bangladeshi operation was United Airlines' subsidiary. Accordingly, viewed as a whole, the differences between the signs were so insignificant that they would go unnoticed by the average consumer and the two marks therefore sufficiently identical for a same marks/same services action under the Trade Marks Act 1994, s.10(1) to succeed.  Oh, and there was one small issue concerning identity of services too: the fact that airlines fly different routes doesn't make them different services for trade mark purposes.

Regarding the similar marks/identical services claim under s.10(2) of the same Act, evidence of actual confusion was not conclusive, and rarely significant [Not much point in adducing it then? But evidence of lack of actual confusion is equally inconclusive and insignificant ...]. The average consumer was likely to be confused if, lacking intimate knowledge as to the difference between "AIRLINES" from "AIRWAYS", he relied on the imperfect picture he had of the marks and signs in his mind. The same would apply if he reached the Bangladeshi airway's website.

United Airways couldn't say they were merely using their own name when they had picked a name that had been well-established for decades -- particularly since they offered no reason why they should have chosen it.  Its conduct was unfair and was caught by the unfair advantage provisions of s.10(3).

United Airlines' argument based on passing off was also irresistable. Goodwill in the company's marks was established on the evidence, as was the fact that members of the public would believe, on the basis of the similarity, that the Bangladeshi business was connected with the US one. The argument that the public could carry out research and discover that there was no link between the parties must fail [If it succeeded here, we could all kiss goodbye to the tort of passing off, since it would succeed on every occasion].

Funnily enough, after coming across this decision, whom should the IPKat bump into at the AIPPI UK Garden Party yesterday evening but a very sunny Isabel Davies, virtuoso trade mark litigator and now Consultant to Boyes Turner, the firm which acted for the victorious United in this very case. Pressed by the Kat to spill the beans on all the behind-the-scenes information that makes these cases so much fun, Isabel would not be drawn into anything less discreet than the tactful observation that "the judge looked very carefully at the evidence when he came to this conclusion, granting summary judgment. He refused leave to appeal on the basis of his view on the case".  Merpel wonders whether, even if leave had been granted, United Airways might spend its money more beneficially in changing its offending livery.

The Damned United here
The birthday is over again for another year. My goodness it goes so quick.  Only one daughter's birthday left for the year.  Miss 12 will become a teenager!

Was excited when I arrived at work, after much teasing, I was given an ipad.  I am loving it very much and so are my kids.

I have added some apps but am willing to add more, any ideas?

I have begun cutting up my 2 1/2inch strips in to squares for Miss 9s quilt.  I hope to sew it up over the next week when they are away for the week.  It is not a surprise but I want to really finish it off.

Got mail today, a quote for some work to be done at my house I rent out.  Oh well it has to be done I suppose.  Lucky it is nearly tax time.  Add this to the list of jobs to do.....

Love watching the kids as they play with my new toy. 
The worst drought in 60 years in the Horn of Africa has sparked a severe food crisis and high malnutrition rates, with parts of Kenya and Somalia experiencing pre-famine conditions, the United Nations has said.

More than 10 million people are now affected in drought-stricken areas of Djibouti, Ethiopia, Kenya, Somalia and Uganda and the situation is deteriorating, it said (see map at right).

"Two consecutive poor rainy seasons have resulted in one of the driest years since 1950/51 in many pastoral zones," the UN Office for the Coordination of Humanitarian Affairs told a media briefing. "There is no likelihood of improvement until 2012".

Food prices have risen substantially in the region, pushing many moderately poor households over the edge.

A UN map of food security in the eastern Horn of Africa shows large swathes of central Kenya and Somalia in the emergency category, one phase before what the UN classifies as catastrophe/famine – the fifth and worst category.

Child malnutrition rates in the worst affected areas are more than double the emergency threshold of 15 per cent and are expected to rise further. High mortality rates among children are also reported.

Drought and fighting are driving ever greater numbers of Somalis from their homeland, with more than 20,000 arriving in Kenya in just the past two weeks, the UN refuge agency UNHCR said on Friday. It voiced alarm at the dramatic rise, noting the average monthly outflow had been about 10,000 so far this year.

Almost half the Somali children arriving in refugee camps in Ethiopia are malnourished, and those arriving in Kenya are little better, Byrs said.

UN humanitarian appeals for Somalia and Kenya, each about $525m, are barely 50 per cent funded, while a $30m appeal for Djibouti is just 30 per cent funded, she said.

The Guardian,"Africa drought pushes Kenya and Somalia into pre-famine conditions", accessed June 29, 2011
WorldBulletin, "Worst drought in 60 years hitting Horn of Africa: UN", accessed June 29, 2011
Reuters,"Worst drought in 60 years hitting Horn of Africa: U.N.", accessed June 29, 2011

Bicycle Heaven, Manchester Bike Museum, Opens This Saturday

Marty Levine reports in the Post-Gazette that Bicycle Heaven, a museum of rare and collectible bicycles, opens this Saturday at 10am in the Manchester neighborhood on Pittsburgh's NorthSide.

Craig Morrow, the proprietor, has been collected bicycles and selling collectible bicycles vie Ebay for year, keeping the most interesting bikes for his own collection. His museum will have over 900 bicycles.
Determined to avoid making payments
if the ECJ rules against the Irish State,
some hotel owners will make their guests
play phonograms only off the premises
Today saw an all-Irish contest in Luxembourg when Advocate General Trstenjak rendered an Opinion to guide the Court of Justice of the European Union (ECJ) in Case C-162/10 Phonographic Performance (Ireland) Ltd v Ireland and Others, a reference for a preliminary ruling from the Commercial Division of the Irish High Court.  Before getting down to the serious matter of identifying the relevant law and advising the ECJ what they should tell the Irish to be doing with it, the AG treated us to a little scene-setting:
"1. Just as Gutenberg’s invention of the printing press ultimately led to copyright protection of written works [and to copyright infringement, notes Merpel], Edison’s invention of the phonograph not only increased the economic importance of copyright protection of musical works, but also paved the way for the introduction of related rights for performers and phonogram producers. If a phonogram is used, this affects not only the author’s right to the communicated copyright work, but also the related rights of performers and phonogram producers.

2. The present reference for a preliminary ruling from the High Court of Ireland ... concerns the right to equitable remuneration under Article 8(2) of Council Directive 92/100 ... on rental right and lending right and on certain rights related to copyright in the field of intellectual property ... and of Directive 2006/115 ... on rental right and lending right and on certain rights related to copyright in the field of intellectual property ... which must be paid in respect of communication to the public of a phonogram already published for commercial purposes.

3. The referring court wishes to know ... whether such a right also arises where a hotel operator provides televisions and/or radios in guest bedrooms to which it distributes a broadcast signal. The answer to this question depends on whether in such a case the operator uses the phonograms contained in the radio and television broadcasts for communication to the public.

4. Secondly, the referring court asks whether such an operator also uses those phonograms for communication to the public where it does not provide radios or televisions in the bedrooms, but players and the relevant phonograms.

5. Thirdly, the referring court is seeking to ascertain whether a Member State which does not provide for a right to equitable remuneration in such cases may rely on the exception under Article 10(1)(a) of Directive 92/100 and of Directive 2006/115, on the basis of which the Member States may provide for limitations to the right to equitable remuneration in respect of private use.

6. The substance of these questions is closely connected with SGAE [noted by the IPKat here]. In that case, the Court found ... that communication to the public within the meaning of Article 3(1) of Directive 2001/29 ... on the harmonisation of certain aspects of copyright and related rights in the information society exists where a hotel operator distributes a signal by means of television sets provided in its bedrooms, irrespective of the technique used to transmit the signal. It also found that the private nature of hotel rooms does not preclude communication to the public. In the present case, the question arises in particular whether these principles, which concern communication to the public of copyright works under Article 3(1) of Directive 2001/29, can be applied to the notion of communication to the public within the meaning of Article 8(2) of Directive 92/100 and of Directive 2006/115, which concerns the related rights of performers and phonogram producers.

7. ... the present case is closely connected with Case C-135/10 SCF, in which I deliver my Opinion on the same date as in the present case [and which, frustratingly, has not been made available yet in English]. SCF relates ... to whether a dentist who makes radio broadcasts audible to his patients in his practice using a radio provided in his practice must pay equitable remuneration pursuant to Article 8(2) of Directive 92/100 and of Directive 2006/115 because he communicates the phonograms used in the radio programme indirectly to the public".
So what happened in this case? The facts were simple:

" The applicant ... is a licensing body. Its members are phonogram producers who hold related rights in phonograms. The applicant asserts, on behalf of its members, their rights arising from the communication of their phonograms to the public.

40. The defendant in the main proceedings is the Irish State.

41. The applicant in the main proceedings takes the view that the Irish State has not properly transposed Directives 92/100 and 2006/115. Section 97(1) of the Act of 2000 is not compatible with Article 8(2) of Directive 92/100 and of Directive 2006/115 in so far as it provides that there can be no right to equitable remuneration for the communication of phonograms which takes place in the bedrooms of Irish hotels and guesthouses, as part of their service, on radios, televisions and sound systems.

42. The applicant in the main proceedings has brought an action against the Irish State in which it seeks a declaration, first of all, that in adopting section 97(1) of the Act of 2000, the Irish State has failed to fulfil its obligation to transpose Article 8(2) of Directive 92/100 and of Directive 2006/115 and Article 10 EC. Secondly, it seeks compensation for damage which it has suffered as a result."
That's the easy bit.  The issues are clear but the questions have to be converted into something more precise, but sadly far less intelligible:

"(i) Is a hotel operator which provides in guest bedrooms televisions and/or radios to which it distributes a broadcast signal a ‘user’ making a ‘communication to the public’ of a phonogram which may be played in a broadcast for the purposes of Article 8(2) of Directive 2006/115?

(ii) If the answer to paragraph (i) is in the affirmative, does Article 8(2) of Directive 2006/115 oblige Member States to provide a right to payment of equitable remuneration from the hotel operator in addition to equitable remuneration from the broadcaster for the playing of the phonogram?

(iii) If the answer to paragraph (i) is in the affirmative, does Article 10 of Directive 2006/115 permit Member States to exempt hotel operators from the obligation to pay ‘a single equitable remuneration’ on the grounds of ‘private use’ within the meaning of Article 10(1)(a) of Directive 2006/115?

(iv) Is a hotel operator which provides in a guest bedroom apparatus (other than a television or radio) and phonograms in physical or digital form which may be played on or heard from such apparatus a ‘user’ making a ‘communication to the public’ of the phonograms within the meaning of Article 8(2) of Directive 2006/115?

(v) If the answer to paragraph (iv) is in the affirmative, does Article 10 of Directive 2006/115 permit Member States to exempt hotel operators from the obligation to pay ‘a single equitable remuneration’ on the grounds of ‘private use’ within the meaning of Article 10(1)(a) of Directive 2006/115?"
For to make things a little easier for the ECJ, the referring court specified that the proceedings before it did not concern the public areas of hotels and guesthouses, but only hotel and guesthouse bedrooms and that, to the relief of us all, they did not concern any interactive or on-demand transmissions".
The Advocate General advised the ECJ to tell the referring court that

"(1) Article 8(2) of Directive 2006/115 ... and of Council Directive 92/100 ...[means] that a hotel or guesthouse operator which provides televisions and/or radios in bedrooms to which it distributes a broadcast signal uses the phonograms played in the broadcasts for indirect communication to the public.

(2) In such a case, the Member States are required, in transposing Directives 2006/115 and 92/100, to provide for a right to equitable remuneration vis-à-vis the hotel or guesthouse operator even if the radio and television broadcasters have already paid equitable remuneration for the use of the phonograms in their broadcasts.

(3) Article 8(2) of Directive 2006/115 and of Directive 92/100 [mean] that a hotel operator which provides its customers, in their bedrooms, with players for phonograms other than a television or radio and the related phonograms in physical or digital form which may be played on or heard from such apparatus uses those phonograms for communication to the public.

(4) Article 10(1)(a) of Directive 2006/115 and of Directive 92/100 is to be interpreted to the effect that a hotel or a guesthouse operator which uses a phonogram for communication to the public does not make private use of it and an exception to the right to equitable remuneration under Article 8(2) of Directive 2006/115 is not possible even if the use by the customer in his bedroom has private character".
There's a lot to read in this Opinion and this Kat hasn't had time to digest it yet.  One thing that did catch his eye, though, was the sheer breadth of the concept of communication to the public as viewed through the lens of "making accessible" (see extract below, with emphases added). He wonders whether, at the point at which the legislation was drafted, its originators would have assumed that the concept ran so widely:

"164. Recital 27 in the preamble to Directive 2001/29 does not preclude the existence of communication in a case like the present one, however. It must be construed as meaning that persons providing players, without at the same time controlling access to copyright works, do not make any communication to the public. This is the case, for example, where televisions or radios are sold or rented or where an internet service provider merely provides access to the internet. In a case like the present one, however, the hotel operator does not simply provide the players. Instead, it also deliberately provides hotel customers with phonograms, and thus provides hotel customers with direct access to the sounds fixed in the phonograms.

165. It can be stated, in conclusion, that a hotel operator which provides its customers with not only players, but also the relevant phonograms, makes the copyright works embodied in phonograms accessible and makes the phonograms audible, with the result that there is communication to the public both within the meaning of Article 3(1) of Directive 2001/29 and within the meaning of Article 8(2) of Directive 2006/115".
For the record, the Opinion in Case C‑135/10 SCF Consorzio Fonografici contre Marco Del Corso, kindly translated into English by Lord Justice Google and slightly tickled up by the IPKat, goes like this:

"1. Article 8(2) of Council Directive 92/100 ... or Directive 2006/115 ... must be interpreted the sense that a dentist who places a radio in his waiting room and, through it, making a radio show heard by his patients, is required to pay fair compensation for indirect communication public of phonograms used in the radio.

2. On the basis of the criteria of EU law, neither Article 12 of the Convention on the Protection of Performers, Producers of Phonograms and Broadcasting Organizations [Rome 1961] nor Article 15 of the WIPO Performances and Phonograms Treaty, nor Article 14 of [TRIPS] are the provisions of international law that a party may invoke directly as part of a dispute between individuals".
"ICANN Names Technology Public Policy Expert as its First Vice President of Europe" is the headline that excitedly proclaims the appointment of Thomas Spiller to run the Brussels office of ICANN (the Internet Corporation for Assigned Names and Numbers). Spiller, a French national, will be responsible for "driving ICANN’s strategic objectives in Europe". His previous convictions include time spent advising the French Prime Minister’s Office and later heading up global policy strategy at SAS, one of the world’s largest independent software vendors.

A lawyer by training, Thomas Spiller takes up his new role on 29 August -- a slightly odd date for those of us who remember a time when no professional Frenchman could ever be caught working during the month of August. This Kat suspects that we may hear a great deal of this gentleman over the next year or two, and hopes that he is as good at listening as he is at advising -- otherwise dialogue between brand owners and ICANN is going to be pretty painful [Merpel wonders all the cybersquatters, typosquatters, nuisances and parasites who do so well out of domain name registration: they must have a highly efficient trade organisation, since they so often seem to get what they want ...].

Unrestricted choice -- but
will it lead to meltdown?
Lingering for a moment on the subject of ICANN and the new regime ahead of us for the explosive expansion of top-level domains, the IPKat's poll closed earlier this week and here are the final figures:
  • At last, we have real choice and emancipation of domain names: 7 (4%)
  • It's no big deal. In 10 years time we'll wonder what the fuss was: 97 (57%)
  • It's a recipe for disaster for businesses and consumers alike: 66 (38%)
Please don't write to tell the Kats that 4 + 57 + 38 only add up to 99 -- this is merely the consequence of the polling software rounding figures up or down, as the case may be.

IPSoc never neglects the social side of its programming
IPSoc, the society for junior IP practitioners, is a worthy organisation which anyone who aspires to the enjoyment of good company, the exchange of bright ideas and a taste of things to come in terms of taking responsibility for the IP community in the future should jolly well join.  Be that as it may, IPSoc's next educational event is a talk by Professor Lionel Bently, "Leading UK and ECJ Judgments: Key Developments in Trade Mark Law (including Interflora v M&S)". The date: 25 July 2011; 6pm for 6.30pm, with drinks following promptly at 7.30pm. Venue: the London office of Pinsent Masons LLP.  Sign up here.

"Do we come to bury copyright, or to praise it?"  Last night the number of registrants for the 1709 Blog's Copyright Debate on 12 July, supported by this Kat, reached the amazing total of 200.  There's still room for more. Full details of the programme and registration can be found here.  
West Antarctica’s biggest glacier is melting 50 percent faster than in 1994, adding to a global increase in sea levels, U.S. and U.K. scientists found.

The Pine Island glacier is losing about 78 cubic kilometers (30 cubic miles) of ice per year, the researchers at Columbia University in New York and the British Antarctic Survey in Cambridge, England, said today. That’s up from 53 cubic kilometers in 1994. The study in the journal Nature Geoscience (at right) is based on data from a 2009 expedition.

Scientists are grappling to understand how much Antarctica’s ice could contribute to higher sea-levels after the United Nations in 2007 predicted they’ll rise by 18 to 59 centimeters (7 to 23 inches) this century. Just how much of that will come from the southern continent remains uncertain.

“The glaciers from the Amundsen Sea region are contributing more to
sea-level rise than any other part of Antarctica, so it’s imperative we understand the processes involved,” Adrian Jenkins, a glaciologist at the British Antarctic Survey and a co-author of the paper, said in an e- mailed statement.

The Pine Island glacier and smaller glaciers that flow into it contain enough ice to boost sea levels by 24 centimeters, according to

The regional increase in ocean temperatures of 0.2 degrees Celsius (0.4 degrees Fahrenheit) isn’t enough to cause the increase in melt at Pine Island, the researchers said.

They sent a robot submarine beneath the floating portion of the glacier and determined that the ice mass had previously been grounded on a ridge. The ice melted free from the ridge, opening room for warmer waters to circulate, they said.

“More warm water from the deep ocean is entering the cavity beneath the ice shelf, and it is warmest where the ice is thickest,” Stan Jacobs, an oceanographer at Columbia’s C and the study’s lead author, said in an e-mailed statement.

Bloomberg News,"West Antarctica’s Biggest Glacier Is Melting 50% Faster Than 17 Years Ago", accessed June 28, 2011
Earth Institute Columbia University, "No Longer Anchored, Antarctic Ice Stream Surges to Sea", accessed June 28, 2011

Fracking Weltanschauungs; Poor New York Missed Out

When information presents a blizzard, it's important to have multiple sources of information and to have some context in which to frame those sources.

The New York Times writes about the fracking industry: Insiders Sound an Alarm. The article presents GMail strings from industry insiders arguing that Marcellus Shale is the Next Big Bubble and that it is both a gas bubble and also another real estate bubble.

“Money is pouring in” from investors even though shale gas is “inherently unprofitable,” an analyst from PNC Wealth Management, an investment company, wrote to a contractor in a February e-mail. “Reminds you of dot-coms.”

“The word in the world of independents is that the shale plays are just giant Ponzi schemes and the economics just do not work,” an analyst from IHS Drilling Data, an energy research company, wrote.

The Wall Street Journal presents The Facts About Fracking, and from their perspective it's all good.

Yes, there are some complaints that fracking has polluted drinking water with methane gas. The story explains, "Methane is naturally occurring and isn't by itself harmful in drinking water, though it can explode at high concentrations." The stories of Pennsylvania residents who are able to set their tapwater on fire are apparently outliers and not statistically significant.

As a regulatory model, consider Pennsylvania. Recently departed Governor Ed Rendell is a Democrat, and as the shale boom progressed he worked with industry and regulators to develop a flexible regulatory environment that could keep pace with a rapidly growing industry. As questions arose about well casings, for instance, Pennsylvania imposed new casing and performance requirements. The state has also increased fees for processing shale permits, which has allowed it to hire more inspectors and permitting staff.

New York, by contrast, has missed the shale play by imposing a moratorium on fracking. The new state Attorney General, Eric Schneiderman, recently sued the federal government to require an extensive environmental review of the entire Delaware River Basin. Meanwhile, the EPA is elbowing its way into the fracking debate, studying the impact on drinking water, animals and "environmental justice."

There is no commonality between the two Weltanschauungs presented; you would think the WSJ and the NYT are from different planets.

It's not the basis for good decision making or good democracy.
Several (German) news sites (see here, here and here) report on a dispute between AVM Computersysteme Vertiebs GmbH and Cybits AG. AVM, it seems, has been trying to stop Cybits modifying AVM's Linux-based Fritzbox firmware (a DSL terminal). If this Kat has understood the dispute correctly, it appears that Cybits’s SurfSitter DSL filter software downloads AVM-produced Fritzbox software on to a user's computer, modifies the software and afterwards re-installs it on the AVM-produced Fritzbox. SurfSitter is a child protection software program.

What makes this dispute so interesting is that part of the AVM-produced and Cybits-modified software falls under the General Public License (GPL). AVM reportedly bases its claim on copyright, trade mark law as well as unfair competition law and appears to argue, inter alia, that it holds the copyright for the overall product (Gesamtwerk), which in AVM’s own view does not fall within the scope of the GPL.

This dispute dates back to 2010, when AVM had initially obtained an interim injunction to stop distribution of Cybits' software. This case has now moved forward to full trial with Harald Welte having joined Cybits' camp in the proceedings as “intervener” (Streihelfer). Harald Welte is behind gpl-violations.org and is, according to Heise.de’s report, also supported by the Free Software Foundation Europe. Welte, who owns the copyright in part of the Linux Kernel, which is included in AVM’s as well as Cybits products, argues that AVM’s effort to prevent third parties like Cybits from distributing modified firmware violates the GPL which allows any third party to modify, recompile, re-install and run modified versions of the respective GPL licensed program (copyleft).

A hearing in this case has now taken place at the Landgericht Berlin on 21 June 2011. For more information on this case, from the view point of the Free Software Foundation Europe, click here. To read Harald Welte’s blogpost summarising with information on this case, click here. Meanwhile, if any of our readers has a link to website that explains AVM's view of the case, can he or she please let the Kat know, so that the links are not too one-sided.

UPDATE: please click here to read AVM's comment on this case (in English). As always, many thanks to readers for their comments. Once the court has handed down a decision, the Kats will of course let you know.

The IPKat has often pondered a problem concerning brand sponsorship which arises when the brand, far from being enhanced by its sponsorship of an event, a sports team or indeed anything else, faces damage though its enhanced exposure.  This issue exercised him recently in the context of two of the sponsors of football's World Cup expressing their substantial distress at the allegations of corruption at the highest level of the sport's governing body Fifa -- allegations of which it seemed that everyone except the sponsors was aware (see earlier post here).  The same issue, sadly involving the same sport but a very different set of circumstances, has arisen today, as the Sky report, "Football Club Suspends Sex Offender Player", makes plain.

In short, Scottish Premier League footballer Craig Thomson pleaded guilty earlier this month to charges of "lewd, libidinous and indecent behaviour" towards two under-age girls. Edinburgh-based football club Heart of Midlothian initially said it would stand by the player, saying there was "no reason for Craig Thomson not to continue his career as a professional footballer". But today Hearts issued a statement to the effect that it has suspended him with immediate effect, adding "No further comment will be made by the club."

Calls by charitable and other organisations for Thomson to be dismissed were initially ignored, but it seems that the trigger for the player's suspension may have been the decision of one of its sponsors, MacB Water.  The company expressed disappointment in Hearts' earlier stance and then withdrew its support as official water sponsor, a deal worth more than £5,000.

Says the IPKat, this sort of situation is one in which there can be no real winners.  Criminal offences against under-aged children cannot be tolerated in any civilised society; children deserve protection and those who exploit and violate them deserve their punishment.  Yet Thomson,at 20, is little more than a child himself and has lifetime ahead of him in which his public shame and criminal record is likely to blight the rest of his adult life. He has also in probability lost the chance to pursue the career of his choice.  MacB Water is obviously entitled to take all reasonable steps to protect the integrity of its trading brand, which means that Hearts is left with a hole in its income through no real fault of its own and its sponsor must re-cast its marketing and promotion plans mid-campaign.  Merpel adds, what a pity Thomson didn't opt for adultery.  This apparently does nothing to damage the image of the sponsored brand -- and may even enhance it -- and presumably doesn't affect the exemplary position of the footballer as a role model for today's youth.

How sponsor Tag Heuer profited from Tiger Woods' off-course activities here 
Carlsberg beer's latest deal to use wanderers Wayne Rooney and John Terry here.
Tomorrow my baby turns 9 years old.  Hard to believe where the years have gone.

I am in the process of making her a quilt for her new single bed, she got it for her birthday from my parents.

I have already made her one which was pink and pretty so this is going to a change, nice and bright.

I have her presents ready for the morning rush. Will post pictures of her and the pressies hopefully tomorrow night.  The celebration with her and her friends on Saturday night  was great and we are going to be dining out, her request tomorrow night. 

Hope the wake up call in the morning is not too early...
OK a nice sunny afternoon and I pull into the servo.

Both drivers in front of me had lined up on the wrong side of their cars.  It made a nice scene I thought.

Moving back on to the road I want you to listen to the sound of that 5.0 litre Ford V8.  

Go on, you know you want to....

$20 for guessing who is singing on the stereo.
Banksy's cat -- or is it a rat? 
Love him or loathe him, the mysterious Banksy is an entertaining and provocative feature of the modern art scene. His highly contemporary, politically pointed and generally well-executed graffiti -- often containing his signature rat -- are a vibrant, satirical contribution to debate and a great way to force us all to confront our own prejudices and cherished beliefs.

Every popular cultural icon -- and Banksy is no exception -- has to face a choice between the following options:
  • cash in on one's output and exploit it commercially;
  • ignore the commercial dimension of one's reputation and output and refuse to be part of the system that creates this commerciality;
  • dabble in the protection and commercialisation of one's name and reputation, but justify it on moral, not commercial, grounds.
Banksy's own position can be seen from the statement on his website:
"You're welcome to download whatever you wish from this site for personal use. However, making your own art or merchandise and passing it off as ‘official’ or authentic Banksy artwork is bad and very wrong.

Banksy neither produces or profits from the sale of greeting cards, mugs or photo canvases of his work. He is not represented by any of the commercial galleries that sell his paintings second hand and cannot be found on facebook/twitter/myspace etc.".
Notwithstanding this, Banksy (who trades under cover of Pest Control Office Limited), has been busily filing for trade mark protection with the UK's Intellectual Property Office (many thanks go to the Kat's friend Edward Smith for spotting this). This company secured, back in 2008, registration of the word BANKSY in no fewer than 20 Classes of goods and services, for, among other things
"Class 03: Cleaning, polishing, scouring and abrasive preparations [Merpel notes how handy these goods can be for, er, removing graffiti];
Class 19: statues and sculptures of stone, concrete or marble [good idea: Banky goes in for sculpture too -- witness The Drinker, parodying Rodin's The Thinker, stolen here]; floor tiles, wall tiles.
Class 20: goods of horn, bone, ivory, whalebone [Ooh, not an animal rights man, is he? Particularly after getting into trouble for elephant abuse], shell, amber, mother-of-pearl, meerschaum and substitutes for all these materials, or of plastics.
Class 29: edible oils and fats [BANKSY edible fats will literally run off the shelves, predicts Merpel].
Class 30: tapioca, sago [one member of the Kat family, having experienced these products in his youth, has always been puzzled as to why they've been classed as foods. In his opinion, this could be one of those rare cases in which the goodwill in the mark is damaged by the badwill in the product to which it is attached -- good luck with this one, Banksy]".
Graffiti men at work here
A University of Exeter team has monitored the movements of an entire sub-population of marine turtle for the first time. The study tracked 68 adult female turtles between 1998 and 2008, one of the largest sample sizes to date, for 372.2 ± 210.4 days.

Although satellite tracking has yielded much information regarding the migrations and habitat use of threatened marine species, relatively little has been previously published about the environmental niche for loggerhead sea turtles Caretta caretta in north-west Atlantic waters. The study confirms that through satellite tracking the day-to-day lives in migration and habitat usage of marine species can be monitored and used to accurately predict their migrations and help direct conservation efforts.

Writing in the journal Diversity and Distributions, lead author and University of Exeter PhD student Dr Lucy Hawkes (now at Bangor
University) describes the migrations of a population of loggerhead turtles in the US Atlantic Ocean over a decade (1998-2008). The findings reveal that, despite travelling thousands of miles every year, they rarely leave the waters of the USA or the continental shelf. This discovery could help the US direct conservation efforts where it is needed most.

The loggerhead sea turtle is a wide-ranging species, occurring throughout the temperate sub-tropical and tropical regions of the Atlantic, Pacific, and Indian Oceans. In the Atlantic, the loggerhead turtle's range extends from Newfoundland to as far south as Argentina. This study focused on monitoring adult females that nest along the coast from North Carolina to Georgia each summer and showed that they forage in shallow warm waters off most of the United States eastern seaboard. The study also revealed that the turtles which travel as far north to forage as New Jersey have to head south to avoid the cold winter there.

The study's conclusion stated: "Findings show that adult female loggerhead turtles display predictable, repeatable home range behavior and do not generally leave waters of the USA, nor the continental shelf. These data offer insights for future marine management, particularly if they were combined with those from the other management units in the USA."

Dr Lucy Hawkes (left) said: "This is the first time, to our knowledge, that anyone has been able to say precisely where and when you would find an entire sub-population of marine turtles. This is incredibly useful for conservation as it tells us exactly where to put our efforts. We knew that satellite tracking was a valuable tool, but this study highlights how powerful it is -- without it we would still be guessing where these beautiful but vulnerable creatures live."

Dr Brendan Godley (right) who led the University of Exeter team has been using satellite tracking to monitor sea turtles since 1997. He said: "By attaching small satellite tracking devices to turtles' shells, we can accurately monitor their whereabouts. Working with biologists and conservation groups around the world we are starting to build a much clearer picture of the lives of marine turtles, including their migrations, breeding and feeding habits. These findings form a valuable resource for conservation groups, who are concerned with protecting turtles from threats posed by fishing, pollution and climate change."

University of Exeter.
"Marine turtle movements tracked." ScienceDaily, 23 Jun. 2011. Web. 27 Jun. 2011.

Original Journal Source:

Lucy A. Hawkes, Matthew J. Witt, Annette C. Broderick, John W. Coker, Michael S. Coyne, Mark Dodd, Michael G. Frick, Matthew H. Godfrey, DuBose B. Griffin, Sally R. Murphy, Thomas M. Murphy, Kris L. Williams, Brendan J. Godley. Home on the range: spatial ecology of loggerhead turtles in Atlantic waters of the USA. Diversity and Distributions, 2011; 17 (4): 624 DOI: 10.1111/j.1472-4642.2011.00768.x

Graph # 9857

There is no truth in the rumour that
the copyright debaters will ht
wearing togas ...
Registrations for the Big Copyright Debate, which the 1709 Blog is hosting in conjunction with the IPKat, continue to rise. With just over two weeks to go, we are now expecting a remarkable total of 187 people to cheer on our speakers as they endeavour to persuade us to bury copyright or to praise it without actually setting the venue on fire.  If this is the first time you've seen news of this event, it's on Tuesday 12 July at the lovely offices of Freshfields Bruckhaus Deringer. Booking (and other) details, including how to gain access to the venue, are available here.

All these top levels
have the Kat
in a spin!
Those "creative" ICANN gTLDs (eg .merpel) have attracted a lot of attention since their launch was announced last week (for background see comments of the IPKat and Class 46).  They've not attracted much positive response from readers of this blog though.  With just a few hours to go before the end of the IPKat's sidebar poll, just 3% of the 160 votes cast are generally supportive of the widening of top-level domains; 57% consider it to be "no big deal" and that, a decade from now, we'll wonder what all the fuss was about. The balance, a little under 40%, consider the opening up of the internet in this way to be a disaster for businesses and consumers alike.

Europe before surgery
What shape is Europe? We may get a partial response to this question soon, thanks to our friends in Hungary. A media release just issued by the Hungarian Presidency on the Unitary Patent Litigation System states that the 25 Member States that are not Italy and Spain are said to have agreed upon the "shape and form of the future European unitary patent, including its translation regime". Michel Barnier, employing the horse-racing terminology so favoured by hardened gamblers, says "We are now entering the home straight".  He adds: "a unitary patent in Europe could be a reality within the next two years".  Well, yes, says Merpel -- but isn't this one of those statements which would be just as true if you stuck the word "not" into it?  Thanks go to Paul England for being first to spot this.

Artichokes: possibly the only
commercially sold product in which
there might be a market for
a loose-leaf version ...
The IPKat's annual Intellectual Property Publishers' and Editors' Lunch takes place almost every December and it's a great chance for publishers, editors, those who work closely with them and even some conference organisers to get together and speak together on matters of mutual interest.  The 2012 Meeting -- which as usual is free -- is being moved forward to Wednesday 7 December.  Further details will be circulated in the autumn.  Meanwhile, if you have not been invited to this event in the past but feel that you and/or a colleague should be on the list, email Jeremy here and let him know, using the subject line IP PubLunch.  Also, if you either want to be the keynote speaker or want to nominate someone else who might not mind speaking on an aspect of IP publishing and/or editing for not more than 15 minutes, do let Jeremy know. He has a speaker pencilled in for 2012 but his list of 'possibles' is running out.

"No thanks, if I can
get a drop of Champers ..."
Why Vickers like Champagne. At a time when many countries are abandoning their great and noble traditions and culture, sacrificing its quintessential icons on the altar of political correctness if they refuse to die by themselves, the French are jealous guardians of all that is French.  And few words are more evocative of France than Champagne, which is not merely a region but a word that conjures all that is magic about eating, drinking and celebrating without keeping a miserly eye on the bill or a miserable thought for tomorrow's hangover.  It's not easy to use the word 'Champagne' for any purpose without the custodians of the name taking action of one sort or another -- so it's pretty rare to find someone using this word and getting away with it. The Kat's vigilant friend Bob Boad did however spot this WIPO ruling, in which one Steven Vickers prevailed in his dispute with the Comité Interprofessionnel du vin de Champagne over the champagne.co domain name.
Caribou have been dwindling in Alberta, Canada for several decades and some scientists believe they could be gone entirely in 70 years. In the area of the petroleum-rich Athabasca Oil Sands in the northern part of the Canadian province, some say they could disappear in as little as 30 years.

Research by Stan Boutin of the University of Alberta, who has studied the caribou population for the past 15 years, shows that the caribou population decline has been so drastic, Boutin says, that caribou numbers have dipped to a point in many areas where they are in very big trouble and in great danger of disappearing completely".

According to Boutin, the Cold Lake Air Weapons Range herd has declined 74 per cent since 1998, while the East Side Athabasca River herd has shrunk by 71 per cent since 1996.

Efforts have begun to remove wolves from parts of Alberta to reduce caribou predation, but new research suggests that human activity related to oil production and the timber wolfindustry could be more important than wolves (left: photo courtesy of National Wildlife Federation) in the caribou population decline. Woodland caribou, once common in the boreal forest of Alberta, are now threatened with extinction in the region by rapidly expanding developments extracting oil from the tar sands.

In fact, while the drop in caribou and moose numbers in recent decades is unmistakable, the populations have held relatively steady in the last four years, said Samuel Wasser, a University of Washington conservation biologist who is the lead author of a paper describing the research published in Frontiers in Ecology and the Environment, a journal of the Ecological Society of America.

The paper advocates specific options to control the impact of human activities in the area before resorting to more drastic actions such as predator removal. Co-authors are Jonah Keim of Matrix Solutions Inc. in Edmonton, Alberta; Mark Taper of Montana State University and Subhash Lele of the University of Alberta.

Northern Alberta's oil sands deposits are so large that the region (left: map courtesy of Wikipedia) is second only to Saudi Arabia as a potential petroleum source. The Athabasca deposit is the largest of three that cover about 54,000 square miles.

In 2005, North American Oil Sands Corp. asked for Wasser's help to determine what was happening to caribou, moose and wolf populations in the Athabasca Oil Sands region south of the city of Fort McMurray, where the company held oil leases. Wasser began using non-invasive methods he had developed to acquire DNA and hormone data from scat samples scat studylocated by dogs.

In 2007 the company was acquired by Norway-based Statoil, which continued to fund the research. The research became more focused on whether the caribou population decline resulted from habitat changes because of roads and other infrastructure associated with the oil and forestry industries, from physiological stress caused by human activity, or from excessive wolf predation brought on by increased numbers of deer and, consequently, wolves. Wasser joined with Keim and Lele, habitat selection experts, and Taper, a population modeler, to try to answer those questions.

The oil sands are in an area covered largely by forests and peat bogs, and most human activity takes place from mid-December to mid-March, when the otherwise marshy ground is frozen and ice roads can be used.

Scat samples from caribou, moose and wolves, well preserved because of sub-freezing temperatures, were collected in the winters of 2006, 2007 and 2009. In 2009, four teams of highly trained scat-detection dogs led to the recovery of 2,000 samples of caribou, moose and wolf scat in 10 weeks.

In examining the samples, the researchers determined habitat preferences for each species, their abundance, the type and quality of food consumed and hormone levels that could indicate whether the animals were under psychological or nutritional stress, or both. They found that deer made up 80 percent of wolves' diet, with caribou and moose each accounting for about 10 percent.

Moose favored habitat associated with food and didn't seem particularly concerned about people. The result was that their scat had low levels of stress hormones and high levels of nutrition hormones.

But caribou proved to be much more skittish. They chose open, flat areas where, presumably, they could see and hear predators and escape. That also made it easier for them to see and hear humans on the landscape. Their scat reflected high stress and low nutrition in areas nearer roads when humans were most active.

It turned out that wolves mostly favored areas inhabited by their favorite food source, deer, which also is habitat with few caribou.

Removing wolves actually could have unintentional consequences, Wasser said, because with a much-reduced wolf population the number of deer would probably increase rapidly. The deer could alter the habitat and perhaps reduce the caribou food supply. Deer also carry multiple diseases that could jump to the caribou population. Until there is evidence to the contrary, changing human activity patterns is safer, he said.

The research also produced the first precise numbers of the caribou, moose and wolf populations in this wooded habitat. As of 2009, the scientists estimated 330 caribou, 387 moose and 113 wolves within the small section of oil sands included in the study. The caribou population was more than double the highest previous estimate. None of the populations changed significantly during the four years of the study.

Wasser said the work provides options that can help reduce impacts from human development. For example, instead of roads or pipelines being routed in a straight line on open, flat terrain, they could wind through more complex wooded terrain and avoid areas that caribou prefer for food and security.

The tools developed to evaluate scat samples for evidence of habitat selection, population changes, nutrition and stress will also provide the means to tell quickly whether mitigation efforts are working or if changes are needed.

"They would be able to make course corrections quickly and effectively," Wasser said.

Canada's native Aboriginal populations are also a concerned stakeholder in the caribou activities. They call to ban development so that enough woodland caribou will be spared to maintain the traditional aboriginal harvest, the First Nations group said.
"The extinction of caribou would mean the extinction of our people. The caribou is our sacred animal; it is a measure of our way of life," Chief Vern Janvier of the Chipewyan Prairie Dene said in a statement.

"When the caribou are dying, the land is dying. We see no respect from government for the caribou or for us as humans. The way Alberta is operating, profit for the oil industry is number 1, and everything else can be sacrificed."
University of Washington. "Caribou in Alberta's oil sands stressed by human activity, not wolves, research suggests." ScienceDaily, 22 Jun. 2011. Web. 27 Jun. 2011.
CBCNews, "Alberta First Nations urge caribou protection", accessed June 27, 2011