OctNov2007

The ADA Monthly Intellectual Property Wrap-Up
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A summary of recent legislation, cases, reports and other events relating to intellectual property and the public interest, published by the Australian Digital Alliance.
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October / November 2007
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[1] About this publication
[2] Copyright Amendment Act 2006
[3] Changes to the Copyright Exceptions
[4] Criminal Offence Provisions
[5] Guidelines for the Infringement Notice Scheme
[6] Privacy Review
[7] Legal Deposit Discussion Paper
[8] Proposed Anti‑Counterfeiting Trade Agreement
[9] Discussion of Some Recent Cases
[10] Universal Music Explores New Business Model
[11] Economic Value of Fair Use
[12] Book launched
[13] 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] Copyright Amendment Act 2006

The previous ADA Intellectual Property Wrap-Up ran through the new exceptions introduced by the Copyright Amendment Act 2006.

In this issue we provide an overview of the new criminal offence provisions and look at the changes to existing exceptions.

[3] Changes to the Copyright Exceptions

Document delivery & Interlibrary loans (ss 49 & 50 Copyright Act 1968)

These exceptions allow libraries and archives to reproduce and communicate published articles and works:

to users for their own research and study under (s 49); and
to another library for inclusion in their collection, to supply to a user under section 49 or to assist a Parliamentarian in performing his/her duties under section 50 of the Copyright Act.

Definition of Library

Before the 2006 amendments, the definition of library for these sections was:

library does not include a library that is conducted for the profit, direct or indirect, of an individual or individuals

Since the 2006 amendments, the definition of library for these sections has changed, and a definition of “archives” added:

library means a library all or part of whose collection is accessible to members of the public directly or through interlibrary loans.

archives means an archives all or part of whose collection is accessible to members of the public.

The effect of this change is that now “for profit” libraries can take advantage of the document delivery/interlibrary loans provisions, as long as all or part of their collection is accessible to the public (directly or though interlibrary loans).

Supplying more than one article

Before the 2006 amendments, a library or user was only able to request more than one article from the same periodical if they related to the same subject matter. Now a user or library can request more than one article if it is for the same research or course of study. This new test is broader than the pre-2006 test, and should be easier for libraries to apply.

This new phrase is also used under the fair dealing for research and study provisions. Educational institutions should note this term was not changed under the Part VB license, so the test to apply when dealing with this license is still whether the article relates to “the same subject matter.”

The commercial availability test

When libraries or users are requesting more than a ‘reasonable portion’ of a work, (generally more than 10% or 1 chapter) an officer of the library must satisfy themselves that the whole or portion of the work cannot be obtained within a reasonable time at an ordinary commercial price.

This has not changed, however there is now further guidance on how an officer is to make this decision. The Copyright Act now requires the officer to take into account these factors:

when the person requesting the copy needs it;
whether the work or portion of the work can be obtained in electronic form within a reasonable time, at an ordinary commercial price; and
the time it would take to deliver the copy to the requesting person.

Reproducing works for preservation purposes (s 51A Copyright Act)

This existing exception allows libraries and archives to make copies of manuscripts for preservation purposes, to replace damaged or deteriorated published works, and to make copies for administrative purposes.

Administrative purposes

The 2006 amendments inserted a definition “administrative purposes”, saying that this means purposes directly related to the care or control of the collection. The explanatory memorandum elaborates, and says this would include educating and training staff and volunteers in relation to activities directly related to the management of the collection of the library or archives. It would not include reproduction to merely add to the collection of the library or archives so more copies are available for users.

Preservation copies of editions

Since the 2006 amendments, it is now possible for libraries and archives to make a reproduction of a published work even if a later edition of the work is commercially available. An officer needs to make a declaration that provides the reason why they are reproducing that particular edition (for example, it contains something unique which is not found in other editions) and states that no new copy of that edition is commercially available.

[4] Criminal Offence Provisions

The 2006 amendments introduced changes to criminal offences under the Copyright Act. There are now three tiers of offences, including strict liability offences, and a new infringement notice system.

The most serious tier of offences is indictable offences, which carries penalties of up to 5 years imprisonment and/or a maximum $60,500-$93,500 fine. The offences generally require intention and recklessness on the part of the offender.

The second tier of offences is summary offences, which carry penalties of up to 2 years imprisonment and/or a maximum $13,200 fine. These offences generally contain an element of intention and negligence on the part of the offender.

The lowest tier is the strict liability offences, carrying a maximum $6,600 fine. Prior to the 2006 amendments, there were no strict liability offences. Their introduction was controversial since an offender need not intend to infringe to be guilty of these offences; the offender only needs to have intentionally done the infringing act.

There is also a new infringement notice scheme that applies to the strict liability offences, and will operate in a similar way as with car speeding fines. That is, the scheme allows police officers to issue on the spot infringement notices for strict liability offences. The alleged infringer can then either pay the fine to finalise the matter, or contest it in court.

[5] Guidelines for the Infringement Notice Scheme

In late August, the Attorney-General’s Department released draft guidelines setting out how the Criminal Infringement Notice Scheme will operate. The Department called for comments on these guidelines.

The Australian Digital Alliance made a joint submission with the Australian Libraries Copyright Committee. It’s available to read here.

[6] Privacy Review

The Australian Law Reform Commission (ALRC) has released a discussion paper reviewing Australian privacy law. It’s available here, and is quite a substantial read at just under 2000 pages. Paragraphs 6.95 and 6.96 consider the effect of DRM (Digital Rights Management) technologies on privacy, noting that in many cases DRMs not only prevent copying, but also collect personal information about the user.

The ALRC is calling for submissions and comments on the paper by 7 December.

[7] Legal Deposit Discussion Paper

The Attorney-General's Department has released a Legal Deposit discussion paper, available here. The legal deposit scheme currently only provides for paper-based publications to be deposited with the National Library of Australia. The Department is calling for comments on the feasibility of extending the current legal deposit scheme to include audiovisual and electronic materials.

Comments are due 11 January 2008.

ADA Board Member Kim Weatherall has posted some comments on this at Lawfont.com here and here.

[8] Proposed Anti‑Counterfeiting Trade Agreement

The Department of Foreign Affairs and Trade (DFAT) is seeking views on upcoming negotiations for a plurilateral treaty aimed at strengthening intellectual property enforcement, called the Anti‑Counterfeiting Trade Agreement (ACTA).

The countries involved at this stage include Canada, Japan, the Republic of Korea, Mexico, New Zealand, the EC, the US and Switzerland. The main purpose of the Discussion Paper is to consider whether Australia should also join in the negotiation of the proposed treaty.

The stated aim of the treaty is to provide a new, higher benchmark for IP enforcement that other countries can join if they wish. The Discussion Paper suggests the possible areas for inclusion are criminal enforcement, border measures, civil enforcement, CD & DVD disc piracy and internet distribution & information technology.

The DFAT discussion paper is available here, and submissions are due 3 December 2007.

[9] Discussion of Some Recent cases

Copyright Agency Limited v. Queensland Department of Education

Queensland Department of Education has been attempting to obtain the electronic use data that the Copyright Agency Ltd (CAL) collects in order to determine the appropriate remuneration for use of copyright materials.

The Queensland Department of Education wishes to obtain this data so that it can verify CAL’s remuneration assessment, and in order to assist with implementing ‘smart copying’ measures to save on the amount of public funds devoted to the Part VB licenses.

The case was referred from the Copyright Tribunal to the Full Federal Court in order to determine whether a system that provided for electronic use data to be supplied to other parties would still come within the Part VB electronic use scheme. In August this year, the Federal Court determined that an electronic use scheme could indeed include providing this data to other parties, and ordered CAL to pay costs.

This case did not decide whether the data should be provided to the Queensland Department of Education. This is a matter for the parties to determine by agreement, or for the Copyright Tribunal to decide.

The decision is available here.

Channel Nine v. IceTV Case - Comments

This case endorses the earlier interpretation in Telstra Corporation Ltd v Desktop Marketing Systems Pty Ltd (2001) that the skill and labour that goes into producing a ‘compilation’ is what enables it to be protected as a ‘literary work’ under the Copyright Act.

IceTV argued:

To construe daily or weekly compilations of time and title information, without synopses, as copyright literary works is to adopt a ‘[r]ussian doll’ approach of ‘looking inside a copyright protected compilation for some smaller sub-set of the information and awarding it the status of an independent copyright compilation’

The IceTV guide contained many similar facts as those contained in Channel Nine’s TV guides, however this case reminds us that the creator of the compilation does not acquire copyright in the facts contained in the information. It is open to others to create their own compilations (containing the same information) through exercise of their own skill and labour.

IceTV did this through a ‘tortuous’ 3 week period of watching television, and developing a template of programs. IceTV used this template and then later referred to a number of guides and resources on the internet to amend this where and when necessary.

The case in its entirety is available here.

[10] Universal Music Explores New Business Model

The digital age has given users an unprecedented ability to obtain, copy and share music over the internet. Companies like Apple iTunes have applied digital locks to music files in an attempt to prevent illegal copies being made. Organisations like the Recording Industry Association of America (RIAA) have sought combat widespread copying and sharing by actively prosecuting copyright infringers.

It appears that regardless of these kinds of measures, people continue to copy and share music. Many now argue that companies could more effectively deter this behaviour by exploring alternative business models for the digital music business.

An interesting development in this area is Universal Music’s planned new endeavour Total Music. Rather then using the conventional pay-per-song model, as seen in iTunes and Amazon, Universal Music is apparently working with mobile phone and wireless providers on a new business model. It’s expected that consumers will pay a little more for their mobile phone package (reports are saying USD5 per month), and will then be able to use their phones to download unlimited songs. It’s likely that these files will also be free of any digital locks.

Another highly publicised diversion from the conventional pay-per-song model was seen last month, when the British band Radiohead launched their album In Rainbows on their own website, and asked fans to “pay what they feel” for the download. It appears that this was very successful, with people on average paying about $10 to download the album.

It will be interesting to see if more artists and music companies begin to explore unique business models like these.

[11] Economic Value of Fair Use

There have been a number of studies on the economic value of ‘copyright industries’, that is, industries that rely on the protection of copyright law. However, a recent report commissioned by the Computer and Communications Industry Association in the US has examined the economic value of the “fair use” copyright exception and suggested this adds more than $2.2 trillion to the US economy, as opposed to an estimated $1.3 trillion added by copyright industries.

The report makes its assessment by examining industries that rely on the availability of fair use in order to operate, such as internet service providers, information services (including news reporters), video rental companies, educational institutions and legal bodies.

The report is a thought provoking read and is available here.

[12] Book launched by ADA Board Member Matthew Rimmer

Matthew Rimmer's new book is called Digital Copyright and the Consumer Revolution: Hands Off My Ipod. The book documents and evaluates the growing consumer revolution against digital copyright law, and makes a unique theoretical contribution to the debate surrounding this issue.

Further information on this book is available here.

[13] 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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