And while talking about Dotcom, Kim Dotcom was arrested in a raid on a mansion just outside Auckland in New Zealand. Kim is an interesting character, morbidly obese and 6’7’’ in height, the police passed his giraffe and rhinoceros sculptures on the way to arrest Kim who had shut himself into the safe room. According to Tony Allen-Mills in the Sunday Times, his Rolls Royce bears the number plate ‘GOD’ and his Mercedes ‘GOOD’ and ‘EVIL.’ Clearly a man of refined taste and sensibilities. There is a 72-page indictment from the FBI alleging that his sites are operating a criminal conspiracy that has deprived copyright holders of an estimated $500m. Tony Allen-Mills goes on to say that Kim Dotcom personally earned $42m in 2010 alone, which does rather debunk the myth that such entrepreneurs are merely a self-styled Robin Hood who have a simple desire to liberate books, films and music in some egalitarian free for all. No, they are in it to make a fast and fabulous buck.
Meanwhile, back in the States, Congress has wobbled and the progress of SOPA (Stop Online Piracy Act) and in the US Senate PIPA, (no, not the sister’s rear, but Protect Intellectual Property Act) have stalled. You might just have noticed there is an election brewing over the water and that, and the Wikipedia blackout and lobbying are slowing progress. A battle royal is taking place between the free for all bandwagon, now pitched against Hollywood studios, book publishers and others. It appears to me that the days of stealing creative industries output without paying for it are now numbered. Quite what form it will take and how draconian the eventual legislation will be is hard to predict, but it will come. In the meantime the allegations publicly aired when high profile cases hit the headlines does the creative industries a favour, it makes young super-geek in his back bedroom stop for a moment and dwell on life in a penal institution in America. And if your offspring aren’t entirely sure that would be such a bad thing, just get them to watch Behind Bars a documentary by Louis Theroux on the subject, legally of course, on BBC iplayer or louistheroux.com
Now as promised: Passing Off what is it? How can it affect an author? And what are the remedies?
First, let me tell you a story.
Once upon a time, there was a children’s author, who had written a series of successful children’s books and these books were very popular and beautifully illustrated. Their fame spread far and wide. So much so, that one day an email from a fan popped into the author’s inbox. The fan had emailed from America, she said how much she enjoyed the author’s books, how much her children enjoyed them and asked if she might interview the author for a little blog that she wrote. The author was naturally very pleased and said she would be happy to be interviewed. A little while later she received another email from the fan, apologising, because she had emailed the wrong author. She was a fan of the American author who wrote books with the same titles, on the same theme. The English author became very suspicious. She looked up the name and books by the American author that the fan had supplied. She ordered the books. Lo and behold a series of books arrived whose similarity in title, subject and illustration was shocking to behold.
And that dear reader is not the end of the story.
Needless to say all the above is alleged (names have been withheld for this reason). The author in question is reluctant at this stage to pursue the matter through the courts, but has been in correspondence with the Society of Authors and her agent and publisher. She has also contacted the author of the other works on the assumption that she will receive protection without having to resort to expensive and time consuming legal proceedings. The next step is to contact the US publisher, who may be unaware of the true situation. Her books are currently out of print, but are the subject of an animation series in progress. She is waiting to hear.
In a guide to Copyright and Intellectual Property Law by Calvin Lowe (published by Easyway) ISBN 781847161574. There are three requirements for a successful action (Rickett and Coleman products v Bordern Ltd (1990): a) the existence of the claimants goodwill b) a misrepresentation and c) damage or likely damage to the claimants goodwill or reputation. Interestingly, misrepresentation need not be intentional and innocence of representation is no defence. And in b) Misrepresentation and confusion: Confusion is by degree and the claimant in such a case would need evidence that the confusion is significant enough for the action to be brought.
If forced, the author in this sorry tale will be seeking professional advice and I would urge anyone finding themselves in this situation to do the same. Had that email never arrived it is perfectly possible that the author would never have known about her doppelganger across the pond.
The global network gives writers enormous opportunities and threats. The tide is turning, albeit like a super tanker, rather slowly. The future for the creative industries may not be as bleak as it seemed only a few months ago. Perhaps 2012 will be the year when we gain more, not less, protection for our creative output. If the World Wide Web can be global and profitable for authors, then it will be a truly an exciting opportunity.