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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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August/September
2005
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[1] About this Publication
[2] Kazaa & Authorisation
[3]
More Reviews: TPMs & ISPs
[4] I can copy, right?
[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 at http://www.digital.org.au/issue/issue.htm. If you have any
suggestions as to what should go in the next issue, please let Sarah Waladan
know by email: (swaladan@nla.gov.au).
Nothing in this publication constitutes legal advice.
[2]
Kazaa & Authorisation
On 5 September, the Federal Court (per
Wilcox J) handed down the decision in
Universal
Music AustraliaPty Ltd v. Sharman License Holding Ltd [2005] FCA 1242.
The Court found that Sharman Networks Ltc, which controls Kazaa Media
Desktop (an internet-file swapping system), infringed copyright by authorising
Kazaa users to make copies of sound recordings and share them with the public.
Essentially, the Kazaa program allowed 'peer to peer' swapping of music
files free of charge, regardless of whether the files are in copyright or not,
which meant that users of the program could download copyrighted works without
permission.
The following factors lead to a finding by the Court that
Kazaa had authorised copyright infringement:
- Kazaa recognised that the system was 'the
world's most downloaded software application' and indeed a banner on the Kazaa
website stated that Kazaa was used for 79 % of worldwide peer-to-peer
file-sharing activities, and it was clear that a major portion of the shared
files were subject to copyright;
- Warnings against the sharing of copyright
files are ineffective to prevent copyright infringement by users;
- It was in Sharman's power to prevent or at
least minimise copyright infringement. The Court found that there were
technical measures, such as keyword filtering and gold file flood filtering,
which could have been adopted to enable the respondents to minimse the sharing
of copyright files, however the respondents didn't take any action to implement
such measures because it was not in their financial interests, rather it was in
their interests to maximise file-sharing activities on their systems.
- Rather than taking steps to minimise
copyright infringement, Sharman encouraged the file-sharing of copyrighted
works via their webpage, which critisized record companies and urged users to
'join the revolution'. The Court found that whilst the material did not
expressly advocate copyright infringement, a young audience would perceive this
as encouragement to ignore copyright limitations.
The fact that there were technologies
available which would facilitate Sharman in minimising copyright infringement
was an important aspect of the decision. The Court clearly thought that it was
reasonable to expect that Sharman would take such steps if it was going to
facilitate use of such software. At the same time however, Wilcox J indicated
that it would not be reasonable to expect that systems such as Kazza could be
amended to prevent infringement in all instances, and he sought to find a
solution which did not prevent legal file-sharing activities:
" I am
anxious not to make an order which the respondents are not able to obey, except
at the unacceptable cost of preventing the sharing even of files which do not
infringe the applicants' copyright. There needs to be an opportunity for the
relevant respondents to modify the Kazaa system in a targeted way, so as to
protect the applicants' copyright interests (as far as possible) but without
unnecessarily intruding on others' freedom of speech and communication. The
evidence about keyword filtering and gold file flood filtering, indicates how
this might be done."
So what are the broader implications of
this decision? Kim Weatherall
discusses
on her blogspot that there are no clear rules coming out of this decision
that could provide assistance to technology innovators over and above what the
Copyright Act says. Brendan Scott of Open Source Law suggests reform may be
needed in this are of the law in his paper
"Kazaa:
Time to Rethink Authorization", and discusses the adverse impacts that
'authorisation law' might have on business venturers, and the contrast the law
creates between on-line and off-line entrepreneurs.
Sharman has
indicated they will be appealing the decision.
[3] More Reviews: TPMs
& ISPs
TPM REVIEW
What Are
TPMs?
Whilst the definition of what exactly constitutes a
Technological Protection Measure (or 'TPM') is somewhat unclear, and indeed is
currently before the High Court in
Stevens v. Sony,
Article 17.4.7 of the Australia -US Free Trade Agreement defines an effective
technological measure as "any technology, device, or component that, in the
normal course of its operation, controls access to a protected work,
performance, phonogram, or other protected subject matter, or protects any
copyright".
This definition of 'effective technological measure' is
broader than what the Copyright Act currently defines as a 'TPM'. The current
definition essentially defines TPMs to be devices or technologies that are
designed, in the ordinary course of their operation, to prevent or inhibit
the infringement of copyright in a work or other subject-matter.
This broader definition may catch more 'devices' which the law will say
it is illegal to circumvent, unless specific exceptions are drafted which allow
such circumvention.
Examples of TPMs include password protection, access
codes, and regional coding. For more examples, see
this
paper prepared for the Canadian Department of Heritage.
What Will
This Review Do?
The Attorney-General's Department is in the
process of developing amendments to the Copyright Act 1968 to ensure
compliance with Article 17.4.7 of the Australia - US Free Trade Agreement. Such
amendments will introduce civil and criminal remedies in relation to;
- circumvention of TPMs that prevent access to
copyrighted material, and;
- 'dealings with' devices and services that may
be used to circumvent a TPM that either controls access to copyright material,
or otherwise protects the copyrighted material
Concurrently with the development of such
amendments, the Attorney-General has requested that the
House of Representatives
Standing Committee on Legal and Constitutional affairs review what
exceptions to the ban on circumvention Australia should adopt in addition to
those already specified in the AUSFTA. The current exceptions which are
directed to libraries and universities are of course not specified in the
AUSFTA. They will be under review during this process as well. There is not
guarantee that they will remain in the Act after implementation of this part of
the AUSFTA in January 2007.
The Committee has been asked to report to
Government before February 2006. Submissions have been requested by 7 October
2005.
Where Can I get More Information?
The
Committee's
briefing
paper;
The Attorney-General's Department's
e-news
REVIEW
OF ISP LIABILITY / SAFE HARBOR SCHEME
The Government is
conducing a review of the scope of the safe harbour scheme which was introduced
on 1 January 2005. One of the issues it will be looking at is whether the
scheme should be expanded to include on-line service providers.
To
state very briefly, the safe harbor scheme currently provides for a take-down
notice procedure which allows those that fall under the definition of "Carriage
Service Provider" ("CSP") to 'opt-in' to the scheme and therefore enjoy
immunity from civil liability in relation to infringing copyright material
existing on its network systems if it has complied with the various
requirements set out in the
Copyright
Regulations.
Currently, the definition of 'CSP' is the same as that
provided under the Telecommunications Act 1977. The definition is technical and
limited and is thought not to cover many providers of on-line services unless
they also provide network services such as described by the Telecommunications
Act definition (thus this definition probably excludes most universities,
libraries & cultural institutions).
The issues paper (which is not
yet available on-line) points out that the policy intention was for the safe
harbor scheme to 'operate with technological neutrality to cover as wide a
range of digital network service providers as possible"... and that "Providers
of on-line services are likely to face similar problems regarding the lack of
control over the actions being taken by their users".
Allowing on-line
service providers to be included in the opt-in safe harbor scheme may benefit
such providers, particularly if they are considering expanding the services
they provide to include functions where they will not have control over
material which may be placed on/transmitted through their networks.
Submissions are requested by 10 October 2005.
[4] 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
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