JanFeb08Wrap

The ADA Monthly Intellectual Property Wrap-Up

A summary of recent legislation, cases, reports and other events relating to intellectual property and the public interest, published by the Australian Digital Alliance.

January / February 2008

[1] About this publication
[2] Attorney-General’s Department releases guidelines on "Key Cultural Institutions"
[3] Privacy Review
[4] Review of Format-Shifting Exceptions
[5] Update on the Anti-Counterfeiting Trade Agreement
[6] Three Strikes Legislation for Australia?
[7] UK Reviews Copyright Exceptions
[8] Michael Geist Comes to Town
[9] I can copy, right?

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[1] About this publication

This summary of recent IP (but chiefly copyright) happenings of relevance to Australia is published by email and on the Australian Digital Alliance website. If you have any suggestions as to what should go in the next issue, please let Laura Simes know by email.

Nothing in this publication constitutes legal advice.

[2] Attorney-General’s Department releases guidelines on "Key Cultural Institutions"

In December 2006 additional preservation provisions were introduced to the Copyright Act 1968, however they applied only to “key cultural institutions”. Up until now the provisions applied automatically to libraries or archives with a statutory function of developing and maintaining a collection, such as state and national libraries. However, the provisions also allow the Attorney-General to prescribe other bodies to be a “key cultural institution”. Once prescribed, that body can then take advantage of the new provisions too.

The Attorney-General's Department has now released its guidelines on the kinds of factors the Attorney-General will consider when deciding whether to prescribe other libraries or archives as "key cultural institutions". Some core factors taken into account are whether the library or archives holds material that is of historical or cultural significance to Australia, and whether this material is accessible to the public for research and study purposes.

Any body administering a library or archive can apply. This includes organisations such as educational institutions, private enterprises (such as law firms with libraries) and local libraries. The guidelines are available here. The ADA has also put together a document providing further information on applying to become a “key cultural institution”.

If you are applying or thinking of applying we’re keen to hear about your experiences with this.

[3] Privacy Review

Last year the Australian Law Reform Commission (ALRC) released a discussion paper reviewing Australian privacy law. The review included discussion of the impact that digital developments have had on privacy. The Australian Digital Alliance made a submission highlighting the intersection between these issues with intellectual property law and policy. You can read our submission here.

The final report is due to be delivered to the Attorney-General on 30 May this year, and will be available to the public once tabled in Parliament. One of the pertinent issues raised in the review, and discussed by the ADA in our submissions, was the issue of sensitive information held by internet service providers (ISPs). There is little regulation of the information that ISPs collect, and importantly there is also little regulation regarding how and when ISPs can release this information to third parties. This issues is now of particular concern with suggestions that Steven Conroy, Minister for Broadband, Communications and the Digital Economy, is considering ‘three strikes’ legislation (see item 7 below).

[4] Review of Format-Shifting Exceptions

The Attorney-General's Department released an Issues Paper on the new provisions that allow individuals to format-shift their photos and films (Sections 47J and 110AA Copyright Act 1968). When these format-shifting provisions were introduced at the end of 2006, there was also a requirement to review the provisions by March 2008. The purpose of the paper was to invite submissions on whether sections 47J and 110AA are operating satisfactorily or whether either provision should be modified in some way. The ADA put in a submission on this issue addressing our concerns with the prescriptive and technologically specific nature of these provisions. You can read our submission here.

[5] Update on the Anti-Counterfeiting Trade Agreement (ACTA)

The Australian Digital Alliance also made submissions to the Department of Foreign Affairs and Trade (DFAT) on the proposed ACTA, available here.

On February 1 Minister Crean announced Australia's decision to join negotiations on ACTA. His official media release can be found here. As noted in the press release, taking part in the negotiations does not oblige Australia to join any resulting treaty, and a decision will be taken on whether to sign the treaty when it is finalised.

We will keep you updated on the negotiations. As raised in our submissions, this agreement has the potential to raise the bar for copyright enforcement much higher than under international treaties, and our own domestic legislation.

[6] Three Strikes Legislation for Australia?

You may have heard last year about new “three strikes” legislation introduced in France. The UK is now considering introducing similar legislation. Minster for Broadband, Communications and the Digital Economy, Steven Conroy has apparently said he will follow the proposed UK legislation with “particular interest”.

The idea behind the “three strikes” legislation is to legally require internet service providers to take action against internet users engaging in copyright infringement. The “three strikes” involves the ISP:

Issuing a warning to a person engaging in copyright infringement;
Suspending the person’s internet access; and then
Cancelling the person’s internet access.

This proposal raises a number of issues. There is question of whether it is the ISPs job to be monitoring users’ internet use, and this collection and use of information in turn raises a number of privacy issues. There are also concerns with this system upsetting the presumption of innocence: what kind of proof would be necessary to show that a user is positively infringing copyright? The final step of terminating the user’s internet could affect a number of other people, for example. other people in the household who use the internet, and who will no longer have access.

The “three strikes” story, as reported in the Sydney Morning Herald is available here. ADA Board Member Kim Weatherall has an excellent post on LawFont discussing problems this proposal in detail. Alex Malik’s blog also discusses the proposal.

[7] UK Reviews Copyright Exceptions

In December 2006 Michael Gowers completed a review of the UK Intellectual Property Framework. Gowers made a number of recommendations aimed at ensuring balanced and flexible rights, compatible with the digital age. Amongst other things, Gower recommended:

specific orphan works provisions to enable re-use of works where no author can be found;
the introduction of private copying exceptions such as format-shifting provisions;
allowing universities and business greater scope for use of copyright materials for research
enabling copying and format-shifting in libraries

The UK intellectual property office has now released a Copyright Exceptions consultation document, suggesting new exceptions be introduced and some amendment to existing exceptions. The document does not address the orphan works recommendation. The proposed exceptions in the consultation document are very similar to those introduced in Australia under the Copyright Amendment Act 2006, such as format-shifting provisions and an exception for parody.

However, there is potential for the adoption of more expansive exceptions than are present in Australia. The UK consultation document discusses the possibility of introducing an exception for caricature, parody, and pastiche which would have a much broader application than Australia’s parody and satire exception, particularly as a pastiche exception could apply to musical and artistic works that draw on existing copyright works. The consultation document also raises the possibility of introducing a general format-shifting provision allowing a consumer to make copies of materials they own into any format, as opposed to the more prescriptive Australian exceptions that only apply to certain materials and certain types of format-shifting.

The full consultation document is available here.

[8] Michael Geist Comes to Town

Canadian IP Law Professor and general copyright rabble-rouser Michael Geist, recently paid a visit to Australia, where he presented at the VALA conference and managed a few more appearances along the way.

You can view his Melbourne presentation for the Information Futures Forum, “Unlocking Access: the case for open-access publishing” here.

You can listen to his Canberra Seminar “Facing Up to Facebook: The Fight for Fair Canadian Copyright here. (The audio link is embedded in the pdf file. Note that there’s a little interference in the recording at the beginning due to building works at the venue!)

[9] I can copy, right?

Yes, you can copy this publication. Feel free to send it to friends or colleagues, print it off or even archive it on your website provided that all text is included or, in the case of an excerpt, appropriate credit is given.

This publication is licensed under the Creative Commons Attribution-NonCommercial-ShareAlike 2.5 Australia License. To view a copy of this license, visit http://creativecommons.org/licenses/by-nc-sa/2.5/au/ or send a letter to Creative Commons, 543 Howard Street, 5th Floor, San Francisco, California, 94105, USA

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