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.
December 2008
[1] About this publication
[2] ADA / ALCC Flexible Dealing Handbook
[3] ACTA negotiations
[4] Channel 9 v IceTV
[5] iinet sued for authorising copyright infringement
[6] Innovation Review
[7] Australian Bureau of Statistics to use creative commons licensing
[8] Key Cultural institutions
[9] Google Books settlement
[10] In the new year??
[11] 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] ADA / ALCC Flexible Dealing Handbook
The ADA and ALCC are poised to release their Flexible Dealing Handbook. Following on from the 2007 ALCC Copyright Training Sessions, a number of examples where s200AB might be of use to libraries, archives, galleriesand educational institutions have been collected together to form the bulk of the handbook.
The Handbook begins with a background to the new provision, and an outline of how we believe each of the steps of the provision should be approached by institutions. We then work through a number of possible scenarios to illustrate how s200AB might work in practice. The online version of the handbook is now available for download (under CC licence of course) on our websites: ALCC, ADA.
The handbook is right this moment with the printers, and we plan to do a formal launch of the handbook in Canberra early next year (we'll keep you posted on this).
[3] ACTA negotiations
The most recent round of negotiations for the Anti-Counterfeiting Trade Agreement (ACTA) have just been concluded in Paris, with topics for discussion covering statutory damages, IT and internet distribution and definitions. Throughout the year, the Australian Digital Alliance has been in regular contact with the Department of Foreign Affairs and Trade (DFAT), and has worked with Choice, the Internet Industry Association and the Australian Library and Information Association who share our concerns about the possible content of the ACTA.
Earlier in the year, in alliance with these other groups, we produced 'Principles for Negotiation' and also recently made a supplementary submission on the topics that were being negotiated in Paris. At the most recent DFAT consultative meeting, we were told that the draft text would be made available for comment sometime in 2009. DFAT has said on a number of occasions, while Australia is participating in negotiations, we are not committed to signing the final product.
We continue to keep in contact with DFAT and are closely following the negotiations. We'll keep you updated on the any developments.
[4] Channel 9 v IceTV
As you may recall, IceTV used parts of Channel 9 programme schedules for its electronic program guide and Channel 9 sued for copyright infringement. The case was decided in IceTV's favour in the Federal Court, but was overturned by the Full Federal Court in May this year.
It has now gone all the way to the High Court. The implications of this decision are of course far broader than whether IceTV is able to copy portions of a television guide, as it raises questions about the threshold of originality in Australia, and the nature of the protection offered for compilations (collections of facts) in Australia. The Full Federal Court appears to endorse a low threshold oforiginality, with copyright protection afforded even if only small portions of the compilation that are copied.
The Australian Digital Alliance was successful in its application to intervene as a 'friend of the court' in this case, and made submissions that raised implications for users of copyright materials, and the public interest.
The High Court's decision in this case will hopefully be handed down early in the new year.
* ADA Submission to the High Court
*
Hearing transcripts: 16 October 2008 & 17 October 2008
[5] iinet sued for authorising copyright infringement
Another recent development in copyright law cases is that a group of copyright owners, led by the Australian Federation Against Copyright Theft (AFACT), have commenced an action against Internet Service Provider iinet for authorising copyright infringement by failing to take adequate steps to prevent films and TV show from being shared/downloaded. Copyright owners involved in the action include Village Roadshow, Universal Pictures, Warner Bros, Paramount Pictures, Sony Pictures Entertainment, 20th Century Fox, Disney and the Seven Network. This case will be the first test of the 'safe harbour' provisions introduced in Australia as part of the Australia-US Free Trade Agreement in 2004, which provide immunity for ISPs in certain circumstances.
This case has a lot of people interested, with commentary variously calling it "the case that could shut down the internet" and "convincing Australia's teenagers they're prirates" ... We'll certainly be keenly following this case and will keep you updated.
[6] Innovation Review
The Government commissioned Terry Cutler to undertake a review of the National Innovation System. His review "Venturous Australia" was released in September with a number of interesting recommendations relating to intellectual property, including:
Recommendation 7.3
Professional practitioners and beneficiaries of the IP system should be closely involved in IP policy making. However, IP policy is economic policy. It should make the same transition as competition policy did in the 1980s and 90s to being managed as such.
Recommendation 7.7
Australia should establish a National Information Strategy to optimise the flow of information in the Australian economy.
The fundamental aim of a National Information Strategy should be to:
- utilise the principles of targeted transparency and the development of auditable standards to maximise the flow of information in private markets about product quality; and
- maximise the flow of government generated information, research, and content for the benefit of users (including private sector resellers of information).
Recommendation 7.8
Australian governments should adopt international standards of open publishing as far as possible. Material released for public information by Australian governments should be released under a creative commons licence.
Recommendation 7.9
Funding models and institutional mandates should recognise the research and innovation role and contributions of cultural agencies and institutions responsible for information repositories, physical collections or creative content and fund them accordingly.
The full report is available here.
The Government is preparing a 10 year White Paper on Innovation in response to the Cutler Review, which it intends to release in early 2009.
[7] Australian Bureau of Statistics to use creative commons licensing
The ABS however, has not waited for the response to Recommendation 7.8 of the Cutler Review, and has jumped on the Creative Commons bandwagon. They have just introduced Creative Commons licensing for the bulk of content on their website.
As stated on their website, this will lessen the restrictions on the use of free data from the website considerably by changing the copyright from "all rights reserved" to "some rights reserved". In effect, what the ABS will be asking is only that it be acknowledged as the source of the data. People will now be free to re-use, build upon and distribute ABS data, even commercially. The move will make a wealth of data more readily available to the community, researchers and business, facilitating innovative research and development projects based on quality statistics, and promoting the wider use of statistics in the community, which is one of our core objectives.
The copyright statement on the ABS website was changed this week to provide that unless otherwise stated, all content is licensed under the creative commons attribution license (CC-BY), the most minimal of the CC licenses.
[8] Key Cultural institutions
Earlier in the year, the Attorney-General's Department released information on how organisations could apply to them to be 'prescribed' in order to take advantage of Key Cultural Institution preservation provisions. We produced an information sheet detailing how this works and the kinds of information we believe could be included in an application. We're now wondering if any institutions have made an application / are thinking about making an application? Has anyone received a response from the Attorney-General's Department? I've had a few queries from members about this process and thought if others have gone through this process (or are in the midst of this process) it might be useful to be able to share information. If anyone has an experience they'd like to share about this, please drop me a line.
[9] Google Books settlement
The long-running law suit over Google Books, brought by book publishers and authors against Google, was settled in October this year. The Google Books project involves scanning, indexing and making searchable a vast quantity of in and out-of-copyright books. As part of the settlement, Google will continue to allow full access to out-of-copyright books, and previews of in-copyright books will be available, which authors can opt out of if they wish. There will also be a "buy it" option, and a Book Rights Registry established to distribute profits to copyright holders.
The case has generally been praised by all sides - with user groups pleased that there will be increased access to the digitised books, and authors seeing a potential new stream of revenue. Perhaps one downside in the settlement however is that the settlement means there will be no legal decision as to whether Google's actions fell within US 'fair use'.
[10] In the new year??
So, what does the new year have to offer us in the copyright world?
- We can expect the High Court to hand down their judgment in the Channel 9 v IceTV case.
- Web filtering has been discussed on and off by the Department of Broadband, Communications and the Digital Economy throughout this year, and will no doubt continue as an issue in 2009. There is much concern about issues like web censorship, significant slowing of internet speed, and the idea of the 'thin end of the wedge' (i.e.how far would the filtering go? will it continue to expand to encompas possible illegal sites, for example sites that are alleged to infringe copyright?). For the facebookers on this list, there are a number of very large facebook groups opposed to the filtering scheme, such as 'No Australian Internet Censorship' with over 20,000 members.
- The highly anticipated (well, in some circles) government response to the Cutler Review.
- There are calls for submissions to the Productivity Commission's Review on Parallel Importation of Books, and to the House Standing Committee on Climate Change, Water and the Arts, on the Resale Royalty Right.
And as always I’m sure, much much more!
[11] 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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