I can’t believe this, but it happened again. Almost exactly a decade ago, Tim Cushing wrote about a bonkers story out of the UK in which a passport applicant who’s middle name was “Skywalker” was denied the passport due to purported trademark or copyright concerns. The question that ought to immediately leap to mind should be: wait, nothing about a name or its appearance on a passport amounts to either creative expression being copied, nor use in commerce, meaning that neither copyright nor trademark law ought to apply in the slightest.

And you would have thought that coming out of that whole episode, proper guidance would have been given to the UK’s passport office so that this kind of stupidity doesn’t happen again. Unfortunately, it did happen again. A UK woman attempted to get a passport for her daughter, who she named Khaleesi, only to have it refused over the trademark for the Game of Thrones character that held the same fictional title.

Lucy, 39, from Swindon in Wiltshire, said the Passport Office initially refused the application for Khaleesi, six.

Officials said they were unable to issue a passport unless Warner Brothers gave permission because it owned the name’s trademark. But the authority has since apologised for the error.

“I was absolutely devastated, we were so looking forward to our first holiday together,” Lucy said.

While any intellectual property concerns over a passport are absolutely silly, I would argue that trademark law makes even less sense here than copyright would. Again, trademark law is designed specifically to protect the public from being confused as to the source of a good or service in commerce. There is no good or service nor commerce here. Lucy would simply like to take her own child across national borders. That’s it. Lucy had to consult with an attorney due to this insanity, which didn’t initially yield the proper result.

After seeking legal advice, her solicitors discovered that while there is a trademark for Game of Thrones, it is for goods and services – but not for a person’s name.

“That information was sent to the Passport Office who said I would need a letter from Warner Brothers to confirm my daughter is able to use that name,” she said.

This amounts to a restriction on the rights and freedoms of a child in a free country as a result of the choice their parent’s made about their name. Whatever your thoughts on IP laws in general, that simply cannot be the aim of literally any of them.

Now, once the media got a hold of all of this, the Passport Office eventually relented, said it made an error in denying the passport, and has put the application through. But even the government’s explanation doesn’t fully make sense.

Official explained there had been a misunderstanding and the guidance staff had originally given applies only to people changing their names.

“He advised me that they should be able to process my daughter’s passport now, ” she said.

Why would the changing of a name be any different? My name is my name, not a creative expression, nor a use in commerce. If I elect to change my name from “Timothy Geigner” to “Timothy Mickey Mouse Geigner”, none of that equates to an infringement of Disney’s rights, copyright nor trademark. It’s just my name. It would only be if I attempted to use my new name in commerce or as part of an expression that I might run afoul of either trademark or copyright law.

What this really is is the pervasive cancer that is ownership culture. It’s only with ownership culture that you get a passport official somehow thinking that Warner Bros. production of a fantasy show means a six year old can’t get a passport.

Source: UK Once Again Denies A Passport Over Applicant’s Name Due To Intellectual Property Concerns | Techdirt

It sounds absolutely batty that there is a strong, bipartisan push to lock up aspects of our law behind copyright. But it’s happening. Even worse, the push is on to include this effort to lock up the law in the “must pass” National Defense Authorization Act (NDAA). This is the bill that Congress lights up like a Christmas tree with the various bills they know they can’t pass normally, every year.

And this year, they’re pushing the Pro Codes Act, a dangerous bill to lock up the law that has bipartisan support.

[…]

There are lots of standards out there, often developed by industry groups. These standards can be on all sorts of subjects, such as building codes or consumer safety or indicators for hazardous materials. The list goes on and on and on. Indeed, the National Institute of Standards and Technology has a database of over 27,000 such standards that are “included by reference” into law.

This is where things get wonky. Since many of these standards are put together by private organizations (companies, standards bodies, whatever), some of them could qualify for copyright. But, then, lawmakers will often require certain products and services to meet those standards. That is, the laws will “reference” those standards (for example, how to have a building be built in a safe or non-polluting manner).

Many people, myself included, believe that the law must be public. How can the rule of law make any sense at all if the public cannot freely access and read the law? Thus, we believe that when a standard gets “incorporated by reference” into the law, it should become public domain, for the simple fact that the law itself must be public domain.

[…]

Two years ago, there was a pretty big victory, noting that his publishing of standards that are “incorporated by reference” is fair use.

But industry standards bodies hate this, because often a large part of their own revenue stream comes from selling access to the standards they create, including those referenced by laws.

So they lobbied Congress to push this Pro Codes Act, which explicitly says that technical standards incorporated by reference retain copyright. To try to stave off criticism (and to mischaracterize the bill publicly), the law says that standards bodies retain the copyright if the standards body makes the standard available on a free publicly accessible online source.

[…]

They added this last part to head off criticism that the law is “locked up.” They say things like “see, under this law, the law has to be freely available online.”

But that’s missing the point. It still means that the law itself is only available from one source, in one format. And while it has to be “publicly accessible online at no monetary cost,” that does not mean that it has to be publicly accessible in an easy or useful manner. It does not mean that there won’t be limitations on access or usage.

It is locking up the law.

But, because the law says that those standards must be released online free of cost, it allows the supporters of this law, like Issa, to falsely portray the law as “enhancing public access” to the laws.

That’s a lie.

[…]

t flies in the face of the very fundamental concept that “no one can own the law,” as the Supreme Court itself recently said. And to try and shove it into a must pass bill about funding the military is just ridiculously cynical, while demonstrating that its backers know it can’t pass through regular process.

Instead, this is an attempt by Congress to say, yes, some companies do get to own the law, so long as they put up a limited, difficult to use website by which you can see parts of the law.

Library groups and civil society groups are pushing back on this (disclaimer: we signed onto this letter). Please add your voice and tell Congress not to lock up the law.

Source: Congress Wants To Let Private Companies Own The Law | Techdirt