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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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March
2006
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[1] About this Publication
[2] The Da Vinci Code and the
Idea/Expression Dichotomy
[3] Technology Update: YouTube &
Copyright
[4] Policy Update
[5] 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]
The Da Vinci Code and the Idea/Expression Dichotomy
In 2004,
authors of 'The Holy Blood And The Holy Grail'("HBHG") Michael Baigent
and Richard Leigh, initiated proceedings against The Random House Group
Limited, for publishing 'The Da Vinci Code' ("DVC"), alleging that
Random House had reproduced or authorised the reproduction of a substantial
part of the copyright in HBHG.
The HBHG authors' claim was not based on
textual copying, but rather they claimed that the DVC had copied a central
theme which was contained in HBHG. This central theme is detailed in
the
judgement. Briefly however, the HBHG authors argued that their book
contained 15 core themes in chronological order, and made a series of
connections that no-one had made before, and that an extraordinary amount of
skill and effort had been expended by the authors in researching and writing
HBHG and in the expression of the central theme.
On 7
April 2006, the Chancery Division of the England and Wales High Court handed
down its decision. The Court did not accept the HBHG authors' claim.
As
we know from Australian copyright law, a fundamental concept of copyright (in
both UK & Australia) is that it does not protect ideas or information, but
rather the form in which those ideas or the information are expressed. However,
the distinction between the two is not always straight forward. For example, in
Ibcos Computer Ltd v. Barclays Mercantile Highland Finance Ltd [1994],
Jacobs J stated that:
"The true position is that where an 'idea' is
sufficiently general, then even if an original work embodies it, the mere
taking of that idea will not infringe, but if the 'idea' is detailed, then
there may be infringement. It is a question of degree."
In looking
at the HBHG authors' claim, the England and Wales High Court was prepared to
look at the grey area between ideas and their expression, acknowledging that
copyright can exist in non-textual literary works. In doing so, Justice Peter
Smith restated a basic principle of copyright law:
"...ideas and
facts of themselves cannot be protected but the architecture or structure or
way in which they are presented can be."
However, on the facts of
this particular case, the Court was completely unconvinced by the arguments
presented, finding that the authors had not clearly been able to put what the
central theme actually was that DVC had supposedly copied. The Court could not
extrapolate from the HBHG, one cohesive statement as representing in effect the
' major substantial part' of HBHG by reading the text (as they had argued).
Thus, given that it was simply unclear what it was that DVC had copied, it
could not be said that a 'substantial part' of the 'central theme' had in fact
been copied. Justice Peter Smith noted:
"It seems to me, and this is
what the defendant submitted, that the central theme is not a genuine central
theme of HBHG and I do not accept that the Claimants genuinely believe it is as
such. In my view it is an artificial contrivance designed to create an illusion
of a central theme for the purposes of alleging infringement of a substantial
part of HBHG".
The Court accepted an argument put by the HBHG
authors that it was necessary to strike a fair balance between protecting the
rights of the author and allowing literary development, however the Court found
that the central themes as stated, consisted of a series of generalised ideas
that should not be protected against copying.
Interestingly, the HBHG
authors initially argued that the themes all worked together and builded on
each other, therefore creating a particular 'archiatecture' which was copied.
However, in the course of the proceedings, this argument was not pursued by the
HBHG authors.
In summary, the case has probably added little to our
understanding of the idea/expression dichotomy, but rather restated what the
law is (in the UK) in its application to the particular facts of this case. The
judge noted that the case has lead to book sales soaring in relation to both
books, which are both published by Random House Group Ltd.
Click
here to
access the full judgement.
[3] Technology Update: YouTube &
Copyright
There has been much talk about
YouTube lately, with headlines such as
"Industry Cries Foul
Over YouTube Craze" and "Does
Video Have a Napster Problem?" But what is it, and what are the copyright
issues surrounding its use?
YouTube describes itself as a consumer media
company for people to watch and share original videos worldwide through the
Web. It enables people to upload, tag and share video clips through the YouTube
website, across the internet and through email, as well as to create their own
personal video network.
So what's the difference between YouTube and
Napster? Or Grokster? To state very briefly - Napster enabled copying of
copyrighted music through peer-to-peer file sharing. In handing down the
decision in Napster, the US 9th Circuit Court of Appeals essentially found that
Napster had knowledge of and assisted the infringements, and additionally had
the ability to control the use of copyrighted works but elected not to in order
to further its own financial gain. In Grokster, the Court found that Grokster
had actively induced users to infringe copyright.
Whilst it is probably
too difficult to tell how YouTube will develop, the current signs appear to be
that YouTube is attempting to operate within the confines of US copyright law.
The extensive terms and conditions on its website of course ask people not to
post copyrighted material. In addition to this, the company has thus far been
responsive to requests from copyright holders to take down material that was in
breach of their copyright, (for example it immediately removed footage from NBC
Universal's Saturday Night Live) and has taken measures to block videos
that are more than 10 minutes in length after finding that the overwhelming
majority of material over this length was full length copyrighted material.
There have even been reports that YouTube may enter various partnerships with
with entertainment industry, who recognise the potential benefits of YouTube
(such as promotional advertising for example).
At the same time
however, services such as YouTube will facilitate creation of new content which
will in turn no doubt raise old copyright issues in a new context. For example,
"Brokeback
to the Future" has very quickly become a popular parody which has attracted
attention for combining scenes from two hollywood movies, "Brokeback Mountain"
and "Back to the Future". In Australia, the copying of works for the purpose of
creating parodies is not yet exempted from copyright infringement, so there is
no question that creators in Australia would be breaching copyright law in
creating such works. In the US, parodies are recognised under the very general
'fair use' exception of the Digital Millennium Copyright Act, however there
might be more scope for issues to arise regarding the limits of what would be
considered to be a parody in the context of new broadband digital delivery
methods.
Having said that - copyright owner groups have also found
creative ways to utilise this new forum to extend their message to users. For
example, see the US Software Publishers Association's video
"Don't
Copy That Floppy".
[4] Policy Update
Resale Royalty Again On Agenda
Labor MP Bob McMullan
has
introduced the
Artist's
Resale Royalty Bill 2006. It seems unlikely however that the bill will be
passed at this stage given the Government has indicated it would make a
decision on the issue later in the year.
Copyright Exceptions and
Safe Harbors
Bills finalising these recent copyright reviews are
expected to be introduced in the autumn sittings of Parliament. More
information about this will be displayed on this site when this occurs.
[5] 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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