Since the release of the latest generation of consoles, the gaming industry has undergone considerable growth.  No longer seen as a niche, antisocial pastime, the marketing strategies and innovative approaches to game design employed by companies like Nintendo have brought Gaming into the mainstream.  Platforms such as the Wii, and the DS, have spawned a new genre of games, suitable for anyone to play.  The stereotypical hardcore gamer profile of an antisocial teenager locked away in a basement is nowadays far from accurate.  At the same time, the popularity of Massively Multiplayer Online Role Playing Games (MMORPGs) has led to the development of astonishingly vibrant online gamer communities.

Along with the growth in popularity of gaming, has come an increase in videogame piracy.  Just as with films and music, games consist of intellectual property that can be copied, and distributed.  The industry has grown to make gaming a $60 billion dollar market, and the issue of illegal downloading is now serious cause for concern to publishers.

The way games are used by consumers is very different to the way music and film are used.  While a film might be seen once or twice a year, games can offer hours and hours of single player game play, and in a multiplayer environment the entertainment value of a game can often increase with time.  While music is consumed passively, players interact with game environments.  So what does this mean for game piracy?

While the music and film industries go after their consumers in court, both alienating buyers and racking up legal fees, the nature of games gives publishers a range of far better options.

• Demos
  It is sometimes argued by infringing downloaders that they want to sample the material before purchasing it – perhaps wanting to see the film to know if it was worth adding to their DVD collection, or wanting to listen to some of the tracks on an album before buying the whole thing.  For game publishers this is easy to address, as they have been doing for years, by releasing time, or feature limited, demos of their titles.
  Where practical, some publishers also release ‘beta’ versions of their games, allowing users to get a taste of what the finished version will be like, to provide feedback, and to generate marketing buzz.  This has been effective with games such as Blizzard’s Starcraft 2, and the Halo Reach beta given to buyers of the most recent title in the Halo Franchise – Halo ODST.
• Additional In-Game Content
  As explained above, one of the major differences between games, and other media, is that players interact with the game environment, and if taken into account as part of the design process games can be built ready to accept additional content – this might be new levels, characters, weapons or even features.

  Technical measures often make it possible to restrict the release of bonus content to licensed copies through activation, license codes, and other means.  By doing so, publishers not only discourage piracy, but increase the lifespan of a game and add a revenue stream.

• Multiplayer Networks
  One form of additional functionality worth mentioning on its own is multiplayer play.  By restricting access to gaming servers to licensed copies, publishers provide a powerful disincentive to use a pirated copy, for example Xbox Live operators are able to ban those using infringing copies from the multiplayer servers.

  Where the multiplayer aspect of a game is central to its use, an even more effective business model emerges.  Massively Multiplayer Online Role Playing Games (MMORPGs) based on subscription models, can effectively eliminate the threat posed by piracy.  Possibly the most successful game ever, World of Warcraft, attracts monthly subscription revenue in the tens of millions of dollars.

  

All of these are powerful tools by which the games industry can combat piracy, without resorting to legal action.

While game piracy is an issue of mounting concern, it is a different beast as compared to music and film copyright infringement, and has the potential to be approached from a very different angle.

Over 90,000 American military documents relating to operations in Afghanistan have been leaked by the online whistleblower Wikileaks.

Read more about Wikileaks in our earlier post, and on their website.

These previously unreleased documents, leaked in advance to the media under an agreement that they would not publish until this week, offer detailed accounts of the fighting in Afghanistan.  They reveal unreported incidents of civilian casualties, and allegations of links between Pakistani intelligence services and the Taliban.

Wikileaks made these documents accessible to the New York Times, The Guardian and a German newspaper, Der Spiegel, through a secret website.  The newspapers agreed to simultaneously publish on Monday the 26^th of July.

Wikileaks publishes classified documents and information often connected to governments, and other organizations, and the protection of their sources is of paramount importance.  The organisation employs sophisticated encryption techniques, and tactics you might expect to see in a blockbuster spy film to preserve the anonymity of their sources, combining postal drops and electronic communication in their efforts to reduce risk, and encourage the submission of material.  In addition, their servers are distributed across a number of jurisdictions, and configured to discard logs of activity – leaving little or no material of value available for seizure.  Notable prior leaks include information about the secretive beliefs and activities of members of Scientology, a list of the members of the BNP, and the contents of Sarah Palin’s Yahoo! mailbox.

Despite refusing to accept government or corporate funding, out of fear of compromising its integrity, Wikileaks has nonetheless managed to raise $1 million from the public to meet running costs.  A figure that is sure to rise following the publicity generated by this recent disclosure.

The American defence department is trying to trace the source of leaked information, and believes that it may have started in November with the copying of secret information by someone working inside a US military base.  Some commentators have criticised Wikileaks, suggesting that the disclosure of certain information will endanger lives.  It is alleged that this leak in particular could compromise America’s national security.  However, the founder of the organisation, Julian Assange, confidently rejects these accusations, stating: “We are familiar with groups whose abuse we expose attempting to criticise the messenger to distract from the power of the message”.  He also defends the leak by explaining that the information published was seven months old, and that there will be “no current operational consequence”, although it may lead to further investigation.

Speculation is rife over the potential consequences of the disclosure, but what is clear is that the leaks have encouraged public discourse about the war in Afghanistan.  The documents have been said to demonstrate a lack of military discrimination in the conducting of operations, and John Kerry, the US chairman of the Senate foreign relations committee has said that “However illegally these documents came to light, they raise serious questions about the reality of America’s policy toward Pakistan and Afghanistan”.  Kerry, among others, hopes that the documents will lead to a review of policy.

So far 71,000 of the 90,000 documents have been released, and Assange hopes this will inspire others to reveal and expose further information about the war.  The Wikileaks founder believes that the documents enable people to better understand, and scrutinise, the war in Afghanistan with a view to leading a change in policy for the better.

From a legal and technological standpoint the site’s activity raises complex questions about the inter-jurisdictional reach of affected parties, and illustrates how the Internet as a medium can be a far more effective means of neutralising censorship powers than any legislation, national or international.

The popular social networking site Facebook, valued in the billions of dollars, is facing legal action brought by a plaintiff who claims to be entitled to the lion’s share of the business.  The claim alleges that Paul Ceglia paid Facebook co-founder Mark Zuckerberg to develop the site in exchange for $1,000.  The contractual agreement which forms the basis of the action incorporates terms that would entitle Ceglia to an 84% stake in the company, and in addition he is seeking a cut of company profits from the last 7 years.  Facebook were slapped with an injunction preventing disposal of their assets, and responded by taking the case to federal court, requesting that the injunction be dissolved and the case dismissed. Currently Facebook has an estimated value of $6 billion,  and if successful Ceglia could stand to receive not only equity worth in the region of $5 billion, but a share in the revenues brought in by the business since its inception.

Facebook described the case as ‘frivolous’ and made clear that they plan to fight on a variety of grounds, including that since the contract was signed over 6 years ago in 2003, it is void according to the Statute of limitations in New York. The question is also raised as to why Ceglia waited so long to file his suit? FaceBook currently has hundreds of millions of users.  It seems that it was only when the site proved to be truly successful that the plaintiff decided to file his case.  

It has also been suggested that Ceglia’s claim does not add up based on the site’s history.  Facebook’s domain name was not registered until January 2004, and according to the official history of the site Zuckerburg did not come up with the idea of creating the site until after 2003.

In light of Facebook’s success it is not surprising that they have been the subject of various claims, often by people asserting that they have had some input into the site’s development, and therefore deserve financial recognition.  The case illustrates one of the most important considerations when taking a business online, the nature of the contractual relationship between the parties involved.

If you are having a website or part of a website commissioned, be sure to agree upon and set out clearly in writing, how rights to the different elements are apportioned, and what each party is entitled to.  Make sure this is done early, and done well, and you can avoid facing the type of lawsuit that will cost a business like Facebook a huge waste of time and resources to fight, even if there is no merit to the claim.

In view of the controversy surrounding not only its contents, but the way in which it was passed, we had written on the recent Digital Economy Act in an earlier post.  In this post I would like to focus not on the broader policy considerations that have been dominating discussion, but on some of the implications for businesses.

Those businesses likely to be hardest hit by the changes are Internet Service Providers (ISPs), who now face the challenge of implementing procedures to comply with requirements set out in the Act to combat online piracy.  It will be some time before the effects of the Act are well enough understood to offer clear and comprehensive advice on the steps ISPs must take, and a thorough treatment of these is outside the scope of this article, but it is essential that businesses providing customers with internet access take legal advice early on, or they risk facing fines of up to £250,000.

For any business operating a website, an important element of the new legislation is the power granted by the Act in relation to injunctions blocking access to infringing websites.  The Act allows the Secretary of State to set out regulations providing injunctive relief where a website “has been, is being or is likely to be used for or in connection with an activity that infringes copyright”.  Until this power is used in practice it is difficult to predict the impact it will have, but businesses who depend on an online presence would be well advised to establish auditing procedures to determine whether their websites fall within the scope of the provision.  Sites that allow visitors to freely share documents or links without careful moderation are most vulnerable.

The Act also provides for the blocking, or limiting, of an internet connection in response to its use in connection with copyright infringement.  While this has been more widely discussed so far as it relates to domestic internet use, it is of the utmost importance to business owners.  If employees use the internet while at work to access or share infringing material, the provisions may just as easily be used to block or limit that connection.  Such a sanction has the potential to cripple a modern business venture, and it is not only the activity of those in your employ which may constitute cause for concern.  If your internet connection is shared over an unsecured wireless network, then infringing use of the connection by a passerby can have similar consequences.

The best way to manage some of the risks outlined in this post is to take measures early on.  Some steps you might take include:

• Have a clear policy for use of the internet by employees, you might also consider blocking certain high-risk websites
• Audit your own business websites to ensure that you are not offering copyright material for download
• Ensure that any user-generated content on your sites is carefully moderated
• If you use one, secure your wireless network to the fullest extent that is practical given your circumstances

For further information on developments surrounding the Digital Economy Act,  you might be interested in reading the following:

• TalkTalk and BT launch challenge to Digital Economy Act
  Read the Guardian’s analysis of the activities of two of the largest ISPs in the UK, who are seeking judicial review of the Act.
• Ofcom: Draft Initial Obligations Code
  The Independent regulator for the UK communications industries recently published a draft code, intended to give substance to some of the provisions of the Act.

Before considering what start ups require from their lawyers, it’s worth remembering that many businesses tend to change radically in the early years.  A few years after starting up, they may look nothing like their initial manifestation.

This is because it’s common for new businesses to not know what it is exactly that they do, and who they do it for.  Even professionals, like lawyers and web designers, who you would think know pretty clearly what they do, struggle with this.

Start ups therefore take time to find their feet.  As a business gradually achieves clarity about the demand for its goods and services, and figures out which services will generate revenue, and responds to the market, its offering and initial focus changes.

Early phase legal work

Early phase legal work can therefore often be of temporary benefit only.

Yet what happens in practice when a start up chooses lawyers is that a price is set for the various documents or services the lawyer considers the business needs.  This might include a trade mark, terms of business, a website development agreement, documentation for the website, and anything else that is particularly appropriate for a given type of business.

This effectively relegates solicitors to a role of providing documents or advising on specific transactions.  How did this state of affairs come about?  Why lawyers have transformed from their traditional role of trusted business advisers to becoming providers of documents is a subject I will explore another day.  For now what I want to focus on is that if the value a lawyer offers to start ups is the mere provision of documentation or a particular legal service, then is it any surprise they are increasingly perceived to be a commodity?

Many start ups forego the costs of these documents altogether.  Many more of them turn to unqualified advisers or template stores or simply do their own drafting in order to implement the necessary documents for their business.

In response to this state of affairs, some lawyers in these recessionary times have dropped their prices to ridiculously low levels.  What few of them have done is to reassess their offering altogether.  I have.

Pricing model

In my view the fundamental flaw is with the business model of law firms.  Whether we charge for our services using hourly rates or fixed fees, this transaction based focus is what reduces our role to a marginalised one.

What start ups would benefit from far more would be to retain lawyers on an ongoing basis.  Lawyers may lack an obvious reason like the accountant’s annual audit to justify ongoing involvement, but actually have a huge contribution to make to their clients’ business success by remaining   involved and in regular touch on a one to one basis.

Terms of business need constant review

Instead of offering transaction or document based advice to start ups, a lawyer could help them budget, and identify how best to manage the risks, in order to get maximum value from their resources and budget for legal spend.

I have developed a pricing model and legal solution so Azrights can offer real value to clients, by playing a bigger role in their businesses from the outset – not just when they have grown successful enough to warrant an in house style legal service.

By supporting clients in their dream and helping them get what they want we lawyers can make a far greater contribution than by focusing primarily on the legal ‘deliverables’ clients may need.  For example, do they really need a highly technical legal agreement, or could something else written in plain English be quite adequate?  Our new pricing model will provide clients with regular access to our know-how, guidance and business insights.  Clients will be able to run ideas by us, brainstorm before entertaining a new deal – and have legal documents reviewed before they sign them – all while getting budgetary certainty.

Being in business myself means I understand the emotional, financial, and creative investment clients make in their own future.  With my insight into legal risk, I am well placed to offer them something quite different – that is, real help to manage and prioritise their legal budget so as to keep them out of trouble.  Making decisions without legal assistance exposes entrepreneurs to the risk of litigation and other problems, and can be quite scary.  I will also bring objectivity to help them reach great decisions for the growth of their business.

Start ups coming to us will, if they are suitable potential clients, receive an in depth evaluation of their needs, so that we can offer them a monthly retainer fee plan based on their diverse and varied needs.

This approach reflects my insights and experience.  For example, I know that the terms of business a start up begins with will likely need complete overhaul on a continuing basis to keep up with the changing business.  Using our services a start up will not get a false sense of security from having consulted a lawyer in the early days of the business and had terms drafted.  What often happens to start ups is that they don’t budget to have their terms kept up to date so they are likely to be inadequately protected despite having spent a lot of money on legal services when first starting up.  Using us includes a plan for maintaining the terms up to date and relevant.

In conclusion the traditional approach to charging for legal work often results in a poor deal for both client and lawyer.  What we are all about at Azrights is providing cost effective and appropriate legal risk management as well as help to grow the business on solid foundations.

This post is part of a series, to view all of the posts in this series, please click here.

Last week nine websites that allowed people to download or stream TV programmes and films for free were closed down (see here), their domains seized by the US federal government.  These sites included tvshack.net, Movies-Links.tv, FilesPump.com, Now-Movies.coms along with five others.

These sites were  targeted as part of a new initiative, aimed at combating Internet counterfeiting and piracy, and were selected because they allowed visitors access to films such as Toy Story 3 and Prince of Persia: The Sands of Time, which have only recently been released in the cinema.

Many of these sites allowed viewers to watch films taped by camcorder in the back of cinemas, in poor quality and often with audio tracks out of sync with the video.  It is argued that websites like these cause considerable damage to the film industry, as people who might otherwise pay to see films in the cinema, are able to watch them for free online.

John Morton, the assistant secretary from the U.S. Immigration and Customs Enforcement (I.C.E.) explained the new initiative, saying, “We are dedicated to protecting the jobs, the income and the tax revenue that disappear when organized criminals traffic in stolen movies for their own profit”.  Kevin Suh, Vice President of Content Protection for the Motion Picture Association of America, called this action the “largest takedown of illegal movie and television websites in a single action by the federal government” (See here) The government has decided to  severely crackdown on all websites that show pirated American movies, and is prosecuting the owners of these sites. They say that if any of these sites resurface, they will again take action. The US government is primarily targeting websites distributing cinematic content, but may also begin to target sites enabling illegal game downloads.

A major difficulty associated with these efforts is that the nature of the Internet makes it very difficult to control what the public access. Whilst the U.S. Government may have taken control of these domains, the websites can just pop up  at a different location using a different domain name. In fact, TVshack.net have already moved their website to another domain, TVshack.cc. So, while this move is effective to some extent, it is unlikely to be successful in eliminating online copyright infringement by itself.

In trying to control access to content on the Internet, the US Government seems to be fighting a losing battle. As with many similar efforts against the distribution of drugs, and unlawful music downloads, trying to stop illegal movie downloading is proving to be a near impossible task.

Copyright infringement is clearly a problem that everybody is trying to find the best way of tackling.  In the UK Ofcom is currently consulting on how to give effect to measures introduced in the Digital Economy Act 2010 aimed at reducing online copyright infringement.  It’s new draft code proposes that copyright holders could require Internet Service Providers (ISPs) to write to subscribers telling them their accounts have been associated with copyright infringement.  ISPs will need to keep lists, and provide lists of repeat infringers in anonymised form to right holders on request.  Personal details can then be obtained from the ISPs using a Norwich Pharmacal order.  The consultation is open till 30 July.

At the beginning of last week alleged Russian spies were charged in a US court. Are we going to see James Bond back with the femme fatales and the echoes of the cold war? Officially, US-Russian relations were remarkably warm this spring with the signing of the non-proliferation START treaty – so there is should be not much cause for concern. Even more so, as the US is well aware, the new espionage battlefield is hardly being played out the back streets of Washington DC but rather has been pushed into cyberspace. This week the Economist launched a double article on ‘Cyberwar The Threat From The Internet’ (available on subscription).

For all the apocalyptical details given by the Economist, the stakes of a successful cyber ‘siege’ could effectively bring an economy to its knees. The reality of these concerns is confirmed with Web War 1 (‘WWI’): when Government and media websites were crippled in Estonia (See BBC news article here) and Georgia (NY Times article here) by  ‘concerted detail of service’ attacks.

According to US President Obama “America’s economic prosperity in the 21st century will depend on cybersecurity” (See full speech here). Interestingly, Obama’s policy approach to this risk is to coordinate public-private action. To sanctify this, General Keith Alexander has been appointed as head of the new US Cyber Command but ‘cyber-tsar’ Howard Schmidt from Microsoft has also been enlisted.

The cross over of public and private sector is obviously of mutual benefit, as the Government can summon expertise from the IT sector to assess exposure and monitor the threats of a cyberwarfare (see speech here by General Alexander for general aims and objectives of US cyber policy). And the private sector can rely upon a proactive government to support them in protecting the fundamentals behind their innovations.

In this connection, a new innovation, ‘cloud computing’, involves more data and control being migrated to service providers, with assets such as Intellectual Property ‘know-how’, personal data at risk(see comprehensive report by ENISA here on the risks of cloud computing). Without a solid, coordinated and comprehensive policy against cyberattacks it will surely be difficult for this innovation to take off. At least, for now, the ‘coordinated’ side of the US approach should not be overstated, as when Google pulled out of China, due to cyberattacks by the latter, the US administration hesitated to show unequivocal backing for Google (see FT article).

In all, as our economies are intrinsically linked to the internet and the internet now to security, a global regulatory approach to cybersecurity is called for. The US is leading the response currently, NATO has instigated an International approach (consolidating rules of engagement and ally assistance), the EU has set up an agency for this – The European Network and Security Agency  (the ENISA) and the UK is to set up the Cyber Security Operations Centre. But these are still early days, as the Economist points out “there are few, if any, rules in cyberspace of the kind that govern behaviour, even warfare”. Further action, even regulation, is warranted and public-private coordinated approaches are certainly welcome.

In business, as in life, we are constantly assessing and managing risks.  One of the most important risks to avoid is that of choosing your brand name without doing some very careful searches. 

I know this from personal experience.

When I started up my law firm I named it A1 Law, having done a brief trade mark search to make sure I would not be infringing on anyone’s registered trade mark rights.

I had little insight into the important role that positioning plays in business and so set up as a general practice following the advice of the Law Society’s recommended book Setting up and Managing a Law Practice by Martin Smith. Back then (I haven’t read the updated content to know what it says now) the book recommended taking on whatever work you could get.

I quickly realised within a year of starting up, that this was a really bad idea for me personally.  It was far too time consuming having to grapple with subjects like conveyancing, probate, landlord and tenant, which I hadn’t touched in years – but this was the work that was coming in!  I was forever investing time and resources buying books, and systems to be able to process the work without being negligent!  Unsurprisingly this wasn’t very profitable, so that I decided to relaunch as an Intellectual Property niche firm.  After all, I had spent a lifetime doing commercial and intellectual property law, had a masters degree in IP law, and a strong interest in the subject, so why not?  I knew I just had to be determined enough to turn down other work while I waited to build up my Intellectual Property practice.

By now you may be wondering what all this has to do with trade marks?  Well the point is while I was fine as a general practice law firm using the name A1 Law, as an IP law firm it was not fine.

I didn’t do another trade mark search when A1 Law focused on IP work.  No sooner had I made a few adjustments to my website to attract IP law work, than I fell foul of trade mark law.  I immediately received a letter from A1 Trademarks pointing to their registered trade mark covering ‘industrial property’  (which is another term for Intellectual Property).  In their view my IP law firm which was offering, among other things, trade mark registration services, would create confusion with their business.  I agreed and immediately rebranded.

It was really avoidable, as I had noticed their registration when I first did a search before starting up, but hadn’t really focused on it, as I was then just looking to see whether any law firms were using a similar name.  Also ‘industrial property’ didn’t make an impression.   But I want to make 2 points by sharing this story:

1. It’s really easy to fall foul of someone else’s trade mark rights when you set up, or change your business in any way; and
2. I was really lucky that the trade mark owner found out about me straight away.  Rebranding is hugely disruptive as you have to change your marketing materials, your website domain url (no redirection to a new domain is possible!)   You have to get a new logo, business cards, and start over with a new name etc.  It’s a huge distraction.

But the later the trade mark owner finds out about you the more devastating the consequences will be for you.

Running a business without doing thorough trade mark searches (and while you’re at it, claim your name and register it as a trademark) is running a risk that could literally wipe you out at some point in the future when the business might be very successful, and a source of income for you.

If you’re using a name you cannot own then when the inevitable legal challenge comes from the trade mark owner you will have a very short timescale in which to stop using the brand in which you have built up a reputation over the years.  Think how devastating it will be to have your history wiped out, and to have to start over with a new name.  Not only that, but you stand to suffer serious financial loss from having to withdraw from the market your products, packaging, and advertisements, and could be liable to damages.  You may even be forced to hand over your customer lists.

So where once upon a time when I was a lawyer for a large entity like Reuters I used to think that trade marks were for big business, now I think a trade mark is relevant for every size of business.  If you cannot own the name in which you are investing time and energy when building your business, you are building it on a foundation of sand.

This post is part of a series, to view all of the posts in this series, please click here.

Should fan fiction be permitted by copyright law?  Roland Barthes, a literary theorist set out in his essay ‘Death of the Author’ his belief that once a text has been written by an author it no longer belongs to them, but to those who read it.  As he puts it: “to give a text an author is to impose a limit on the text”.  Many pieces of literature become integrated into society as a part of culture.  Is it fair to restrain others from engaging with these works?  Should authors still have control over these stories that have become such a part of society as a whole, or should the public be able to interact with them as well?

Fan Fiction

Fan fiction refers to the creation of stories by fans of an original work using the universe or characters of that work.

The question whether fan fiction infringes copyright attracts much controversy.  Whilst some authors turn a blind eye to fan-based fiction, some enforce its removal from popular fan fiction websites.  Those who oppose fan fiction argue that they do so in order to protect their universe and to prevent distortions of it.

Harry Potter

The Harry Potter series has had thousands of spin-off stories written by its fans. J.K Rowling is said to not mind innocent fan-fiction written by true fans, but does oppose sexually explicit Harry Potter fan fiction.  This illustrates an important issue.  Whilst some fan fiction works might not damage the integrity of the world the original author created, others do.

Fan fiction challenges authors’ control over how the fictional world and characters they created are used.  In 2003 J.K. Rowling and Time Warner filed a lawsuit against a Russian novel ‘Tanya Grotter’ on the grounds that many aspects of the story were stolen from ‘Harry Potter’.  Whilst it is still in print in Russia, it has been banned from being translated or published in other countries.

Twilight

Twilight is another series which has produced a lot of fan fiction spin offs.  The most notable of these is a novel named ‘Russet Noon’ which follows on from the fourth Twilight book, and develops a love story between two of its characters, Jacob and Bella, in contrast to the original love story which was between Bella and Edward. ‘ Russet Noon’ has led to a lot of controversy over whether it infringes copyright.  It was released in March 2009 and although there has been speculation over whether or not the novel infringes her copyright, Stephanie Meyer has not yet taken any legal action.  Although the book was originally going to be sold, the author has now decided to publish it for free.  The publisher of the book, AV Paranormal stated, “When fictional characters become such an intricate part of the popular psyche, as is the case with the Twilight Saga, legal boundaries become blurred, and copyright laws become increasingly difficult to define. This is especially the case when actual cities like Forks and Volterra are used as the novel’s settings. Such settings are not copyrightable, as they are considered public domain. Similarly, the Quileute Nation is also not protected by copyright, and neither are vampire or werewolf legends”.

The extent to which copyright may be used to prevent fan fiction is an involved subject , which is complicated by the fact that it is not just copyright that is relevant, but also trade marks.

Copyright law

At its most simplistic, copyright laws protect writers from unauthorized reproductions of their work.  Such reproductions include verbatim copying, but not the copying of ideas.

There is widespread confusion over the extent to which the plot or characters are protected.  This is unsurprising given high profile cases such as Dan Brown’s book The Da Vinci Code. In that case it was claimed the authors of an earlier work, Holy Blood, Holy Grail, had copied the theme of the book, and lifted a sequence of events that was central to the plot.  The court found, inter alia, that a chronologically ordered sequence of events does not necessarily attract copyright in itself, and dismissed the case.

The state of UK copyright law is complex.  However, in general, far more is required to infringe copyright than the incidental use of plot elements such as locations or events.

What of fictional characters?  The Russet Moon fan fiction work employs characters developed in the Twilight series, and so at issue is whether these are protected by law, copyright or otherwise.  As with the majority of similar questions, the answer is not straightforward.  UK copyright law has long held that copyright does not subsist in a mere name, and while some have argued that well developed fictional characters, comprising far more than a name, should be protected, the UK courts have in the past rejected this, even in relation to complex characters such as Sherlock Holmes.  The stance taken on these issues varies between jurisdictions, for example the US courts in the past have found James Bond to attract copyright, but there are other ways in which characters might be protected.

Trade marks

Although the visual features of a character can constitute an artistic work for the purpose of copyright protection, this is of reduced utility to authors wishing to suppress fan fiction.  Potentially more effective are the rights conferred by trade mark law, and the tort of passing off.

Where character names are registered as trade marks, authors might successfully bring an action for infringement against fan fiction writers, but again the waters are muddied.  Complex questions such as whether there has been trade mark use (for example, selling the fan fiction work) or confusion in the minds of the public as to the origin of the work would need to be addressed.

What is undoubtedly certain, is that fan fiction, and fan sites generally, are going to raise more and more intellectual property law issues in the years to come.

Some time ago Coca Cola registered COKE as a trade mark for soft drinks both in the UK and USA.

So, I was interested to hear from my daughter that the term ‘coke’ is commonly used as a general reference to fizzy drinks throughout the southern parts of America.

On looking into this it seems many people in the Southern States of USA requesting a “coke” do not necessarily mean Coca Cola, but instead any form of fizzy drink, and will generally then specify their request with a statement such as “make it a lemonade”.

Although, currently the reference to “coke” to mean any sort of soft drink seems to be confined to certain States within America, there is anecdotal evidence of this being a growing trend.  Certainly, the use of the term “coke” to denote any cola based drink seems to be widespread in that often when someone asks for a “coke” they are indifferent as to whether they get Pepsi or Coca Cola.

Historical Background

Interestingly, when people initially began to refer to Coca Cola as Coke back in the early 1900s Coca Cola used advertising to dissuade the public from asking for a “coke”.   So in 1913 their campaign slogan was “Ask for it by its full name- then you will get the genuine.”   There was the fear that by nicknaming the drink the brand’s distinctiveness would be diminished, leading to possible genericity.

Despite their use of advertising to encourage people to use the product’s full name, the public still persisted in calling it “coke” so that Coca Cola gave in and trademarked the nickname ‘Coke’.  That was back in 1945.

Growing trend

Although pop and soda are still the most popular words used to refer to a fizzy drink, “coke” remains the third most used term for fizzy drinks in the USA.

This growing tendency to use “coke” when not referring purely to the brand itself could become a problem for maintaining the COKE trademark.

If use of the word “coke” in the generic sense spreads, the danger is that it will become like the brand “Hoover” which became a generic name for a vacuum cleaner, leading to loss as a trademark.

Although it is difficult to stop the general public from using “coke” as a generic term, that is the task for Coca Cola now – to try to  shield this name from being used generically, and prevent the generic use of the word from becoming  more widespread.   Our research did not indicate that COCA COLA is doing anything about this problem currently.