Digital assets (that means "everything you put on the 'net").

It might surprise you to know that just because something is freely readable and is "in the public domain" does not mean it is "in the public domain".

I know. My tag line says "I'm Nigel Morris-Cotterill and I make complicated stuff easy to understand" and that first paragraph seems to be nonsense. But it isn't and this is why.

I am writing this. Anyone can read it. There are no restrictions as to who may lay their eyeballs on it. That's what "in the public domain" is taken to mean by many. A "domain" is a theoretical geographical area over which a person has dominion i.e. authority. So if someone enters that domain without permission, that's trespassing.

But lots of land (for we are usually talking about land) is not in the ownership or control of one person: it's owned by the state (however that is defined) and that land is "public land" or, as I'm sure you've worked out, public domain. But no member of the public is allowed to exploit that land for personal gain. That's why licences are required for e.g. concerts in the park or the use of a public road for a rally. A car rally, that is. Licences for groups to hold a rally about their pet subject are, depending upon the country, not about the right to use the road but instead about a right to assembly. But I digress.

There is another, very different legal meaning and is also about rights of access. It's about intellectual property. I am writing this and I own the content. While I give an implied licence to readers to "repost" it, I do not give a licence to copy and paste it and I especially do not give that licence to those who use my content and put their own name on it.

In intellectual property terms, "in the public domain" does not mean simply that anyone can read it. It means that it may, albeit subject to conditions, be freely distributed. But it does not mean that it may be torn apart and rehashed, that attributions may be removed or that it might simply be republished under someone else's name.

What "digital assets" really means

All of this means that, while there is a fashion to use the term "digital assets" to mean e.g. crypto-currency or non-fungible tokens, the term actually means something much more common.

It means any assets stored in digital form that is accessible without specific permission being granted to that individual gaining access.

But the fundamental principles of copyright still apply - at least in theory. Just as powerful warlords plunder the villages of the poor, so powerful companies like Google and Microsoft plunder the websites of everyone without the means to fight them off. They are far from the only ones. There is a myriad of lone-wolf web-scrapers stealing everyone's content as we speak.

Incidentally, copyright arises on creation. Even unpublished material is subject to copyright. And so is this - even though there is no little Circle with a C in it attached. There is no need for an "all rights reserved" tag - except to dissuade those who would inadvertently act with ill intent. Those who do it on purpose know they are doing wrong and do it anway.

What is protected?

It's easier to start with what is not protected: facts are not protected. Nor are ideas or systems of operation (which is why US intellectual property law, which is not widely followed, allows patents of software).

What is protected is the expression of ideas, opinions, theories- and the expression of all of these so prose, poetry and artistic representation are covered. That explains the programmers' mantra "code is poetry."

But what about where an idea is represented in the abstract; that's common in both poetry and art.

This advert requires the reader to engage and to identify why the caption is relevant. We can see that it's an advert for seminars, focussed on lawyers - the words make that clear. The captions are similar - one refers to law enforcement and the other to a regulator.

The aim is that the readers sees that "what" and "does" appear in both and that in that case, the other words "law enforcement" and "a regulator" are different and different usually means relevant or, even, important. The images, therefore, demonstrate something that requires attention and interpretation.

The woman is in handcuffs, the door is in chains.

So restrictions and freedoms are reference points. The woman is alone, in an office, and clearly being subject to law enforcement.

The door is the door for a business, a law firm - a firm cannot be handcuffed but a regulator can shut it down, in the vernacular, putting the chains on the door.

So the image demonstrates both similarity and difference.

What, then, is protected?

The images are (and copyright in the photo is acknowledged in the attributions page on the website). The photo has been altered so copyright in that is now divided. The entire advert is subject to copyright.

But the concepts - that people get arrested and regulators close down businesses for money laundering related action or failure - cannot be copyrighted.

What it means is that the way we have presented that information is protected even though the information itself is not.

It is this that is at the heart of the debate over e.g. ChatGPT and the host of other bots scouring the internet looking for material for use in what the industry amusingly calls "training."

Unless it's behind a challenge of some sort, everything on the internet is open to viewing by everyone. In that context it is "in the public domain." It is not in the public domain in the sense that it's available for exploitation. So if one of the systems takes and uses our ad as the basis for something else, we would have no right of enforcement even if it was conceptually similar.

The generative imaging programs are designed on that interpretation.

This rework is clearly heavily influenced by the original ad. But we would not be able to claim it's a copy because every element is different. Except now we've done it so we own copyright in this ham-fisted example.

The question would arise as to whether it is so close as to cause confusion but that argument is, largely, restricted to trade marks and where "passing off" is grounds for litigation and damages.

There is an argument that such claims are limited to registered trade marks but there is a contrary argument that custom and use can give similar protection.

NFTs caused confusion: they are digital images and so can be copied and distributed with ease. What, then, was the value that some people were (foolishly) paying millions of dollars for? It wasn't for the image. It was for a private, supposedly persistent, digital record of ownership of the image and, therefore at least in theory, the right to convert an image that is in the public domain in one sense to an image that is in the public domain in another i.e. the exercise of rights over the image by the lawful owner.

So, in summary: just because something is "in the public domain" in the sense that you can see it and read it doesn't mean that it is "in the public domain" in the sense that you can exploit it.

I'm Nigel Morris-Cotterill. I make complicated stuff easy to understand and I'll be doing exactly that in relation to financial crime risk for lawyers in eight capital cities in Australia in October 2024.

www.financialcrimetraining.com

#moneylaundering #lawyers #aus #tranche2 #training #seminar #darwin #brisbane #sydney #canberra #hobart #melbourne #adelaide #perth #australia #KYC #SMR #confidentiality