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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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July 2006
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[1] About this Publication
[2] TPM News: Consultations & Countdown to Implementation
[3] Case Law Update
[4] More Issues with TPMs Implementation: France, the EU & Aus
[5] Copyright Funnies: The DMCA in verse
[6] 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] TPM News: Consultations & Countdown to Implementation
Formal consultations in relation to Australia's anti-circumvention laws (laws banning circumvention of 'technological protection measures') will soon be underway in order to make the 1 January 2007 deadline.
In case you've forgotten what this is about see this previous issue of the ADA wrap and also this issue
Draft legislation implementing the TPM provisions is expected to be out by about the end of August. There is expected to be a 3 week consultation period for comments, and the Bill is then expected to be introduced in the Spring sittings of Parliament (sometime between August - December).
The ADA of course held a forum on the topic on 7 August at which many concerns were raised that the ADA will in turn raise with Government.
Information, outcomes, summaries, and podcasts of speakers presentations from the forum will be distributed to members, and will also be available on the ADA home page soon (members will be notified).
Members with particular concerns should contact me ASAP.
[3] Case Law Update
Perfect 10 v. Google
In this case, adult entertainment publisher Perfect 10 filed a law suit against Google claiming that Google violated Perfect 10's copyrights by its search engine indexing Perfect 10 photos posted on unauthorised websites, as well as making and delivering thumbnail images of those photos. Perfect 10 also argued that Google should be held liable for copyright infringements occurring on websites that Google links to.
In February 2006, a US District Court held that:
- In-line linking of images does not directly infringe a copyright owner's public display right;
- Google should not be held liable for copyright infringements occurring on other websites because it 'created the audience' for those infringing websites;
- Merely visiting a website that include infringing material does not lead to liability for copyright infringement;
- Google's creation and display of infringing thumbnail images did not fall within fair use;
In July 2006, both Google and Perfect 10 appealed this decision.
The appeal documents, including the and previous District Court Ruling (along with interesting commentary) have been collated on the Electronic Frontier Foundation (EFF) website
Additionally, various amicus curiae briefs have also been filed, including one by the Electronic Frontier Foundation (EFF) on behalf of the EFF and the Library Copyright Alliance (which includes the American Library Association, the Medical Library Association, the American Association of Law Libraries, the Association of Research Libraries, and the Special Libraries Association).
Kazaa Settlement
The dispute between Kazaa's owners (Sharman Networks) and various record companies settled last month after Kazaa agreed to pay $115 million in compensation, and implement new filtering technologies and a legal business model.
As Kim Weatherall has noted, we won't be getting a full Federal Court judgment on what constitutes authorisation just yet.
[4] More Issues With TPMs Implementation: France, the EU & Aus
In 2001, the European Union (EU) implemented the WIPO Copyright Treaty in the form of the EU Copyright Directive (EUCD), on the harmonisaton of certain aspects of copyright and related rights in the information society.
As in Australia and the US, implementation of anti-circumvention provisions contained in the Directive which require countries to protect 'effective technological measures' have caused significant controversy amongst copyright stakeholders in European countries.
Whilst the EUCD allowed only 19 months for implementation by Member States, only Denmark and Greece met this deadline.The process of implementation in different European countries is discussed in detail in the guide to EUCD implementation, produced by the foundation for information policy research.
Implementation of anti-circumvention provisions by the French Parliament was particularly topical in July. (Prior to the July amendments, France did not have anti-circumvention laws). The laws were vigorously debated amongst copyright stakeholders, including particularly, open source software developers, consumer bodies, and technology companies (particularly Apple) using 'technological protection measures' ("TPMs").
Interestingly, the new French law, as well as introducing provisions banning the circumvention of 'effective technological measures', also contains provisions requiring companies using digital rights management (or TPM) technologies to provide information about those technologies to competitors wishing to create interoperable systems. However, following much debate and a review by the French Constitutional Council, these interoperability provisions will now be required to contain various safe guards for copyright holders, which some say will make the laws pointless and counterproductive.
Apple corporation was concerned (although seems relatively appeased following the recent changes) that provisions allowing for interoperability of products would interfere with their business model and profits.(Currently, songs bought on iTunes can only be played on iPods, and iPods can't play downloads from other stores with similar content because of the FairPlay encryption). Apple referred to the interoperability provisions of the Bill as "state-sponsored piracy", and there were various rumors that Apple would close iTunes France.
Open source developers raised concerns that laws protecting TPMs would present a big obstacle for the uptake of open systems such as Linux, particularly if there were no exceptions to enable interoperable products to be made, or if private contractual arrangements could forbid dissemination of information needed to make such products.
French consumers voiced concerns, amongst other things, that whilst they are currently able to make copies of copyright works for their own personal use, the number of copies which they may make for this purpose could be limited by TPM technologies.
We will have to wait and see how the final version of the French laws operate in practice.
This debate is of course particularly interesting given that Australia currently is required to implement similar provisions in accordance with the Australia-US Free Trade Agreement. The broad range of ADA members have emphasized the importance of the current exceptions contained in 47B-H of the Copyright Act and the need to include appropriate TPM exceptions to allow for interoperability between computer programs and between computer programs and data.
For discussions about the ill-effects on markets and the anti-competitive effects of provisions that do not adequately provide for interoperability, see the submissions of Linux Australia and OSIA (Open Source Industry Australia) to the TPM Exceptions Review, amongst others.
[5] Copyright Funnies: The DMCA in Verse
What do you get when you cross a lawyer and a poet?
The DMCA in verse
[6] 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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