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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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October/November
2005
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[1] About this Publication
[2] Stevens v. Sony: User Rights
Recognised by the High Court of Australia
[3] The Google Debate
[4]
Update on Reviews
[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]
Stevens v. Sony: User Rights Recognised by the High Court of
Australia
In February this year, the ALCC together with the ADA
jointly intervened as friends of the Court ("amici curiae") in the case of
Stevens v. Sony. A summary of the issues was provided in the
February ADA wrap following the hearing of the
case.
On 6 October 2005, the High Court handed down
its
decision. A significant win for copyright, consumers, and indeed the ADA
and ALCC, (as discussed in their joint
media release).
Whilst
this case was ostensibly about PlayStations, it also had various broader
implications for copyright law, and particularly 'anti-circumvention law', or
in other words, the law relating to 'technological protection measures'
('TPMs). The High Court interpreted the scope of our current anti-circumvention
laws and in doing so it provided direction not only in relation to current
copyright law, but on the fundamental principles of copyright, and the
relationship of copyright law to other areas of the law including
anti-competitive conduct and property law.
Whilst the case relates
specifically to pre-Australia - US Free Trade Agreement ('AUSFTA') law, the
decision has broader implications, and supports an interpretation of the
AUSFTA, and particularly its anti-circumvention law provisions, which
adequately take into account user interests.
The High Court has for the
first time looked at the importance of user rights in the interpretation of
copyright legislation and has suggested it would read down legislation that
purports to take away individual rights, emphasising that the definition of
'TPM' should not 'extend the copyright monopoly'.
Justice Kirby went
further clearly stating that discarding user rights in spite of the delicate
'balance' that copyright requires, may exceed the power granted by the
Constitution:
"To the extent that attempts are made to push the
provisions of Australian Copyright legislation beyond the legitimate purposes
traditional to copyright protection at law, the Parliament risks losing its
nexus to the constitutional source of power. That source postulates a balance
of interests such as have traditionally been observed by copyright statutes,
including the Copyright Act".
The Court warned against any
interpretation of 'TPM' which could interfere with the fair dealing provisions
of the Act and therefore alter the balance struck by copyright law. It warned
that an interpretation which interferes with the fair dealing provisions of the
Act should not readily be accepted and recognised that there is a balance
inherent in copyright legislation and that that balance limits the types of
laws that can be introduced under the guise of copyright. In doing so, the
Court clearly recognised the importance of the copyright exceptions to the
structure of the Copyright Act as a whole.
This decision creates an
important precedent which strengthens the position of user interests in the
copyright debate, and particularly in relation to the implementation of the TPM
provisions of the AUSFTA. You may recall that submissions to the TPM exceptions
review were initially requested by the 10th of October - making this decision
much anticipated amongst those submitting to the review, as it will affect how
the Government may implement the TPM provisions of the AUSFTA.
The
submissions of various stakeholders to that review (including the ADA and ALCC)
argued that TPM laws must be consistent with the fundamental principles
outlined in the Stevens v. Sony decision, which apply not only to the current
version of the Copyright Act but also to the limitations of the power granted
by the Constitution in respect of copyright law.
Further legal analysis
by Kim Weatherall and Matthew Rimmer
here
.
[3] Update on Reviews
TPMs
Review
Background about this review can be found in the
last issue of the ADA wrap.
The ADA
and ALCC have provided a joint
submission to the Committee, and more recently,
supplementary comments in
response to discussions at the
public
hearings held in Canberra.
We must now await the Committee's report,
which will be available on the
website
of the House of Representatives Standing Committee on Legal and
Constitutional affairs in the New Year.
Fair Use/Fair Dealing
Review
The ADA has held further discussions with the
Attorney-General's Department in November/December. These discussions have been
very positive, and in relation to both the Fair Use and Digital Agenda Reviews,
responses are now expected from the Department early in the New
Year..
[4] The Google Debate
Most of you will by now
have heard about the Google Books Library
Project, which essentially aims to digitise the worlds books (both in and
out of copyright) and make them (or rather references to them) searchable via
the Google search engine.
Google views this as a win-win situation,
"For publishers and authors, this expansion of the Google Print program will
increase the visibility of in and out of print books, and generate book sales
via "Buy this Book" links and advertising. For users, Google's library program
will make it possible to search across library collections including out of
print books and titles that weren't previously available anywhere but on a
library shelf".
Not all authors and publishers agreed with this view
however. The Author's Guild initiated legal proceedings against Google in
September. And following suit, five publishing companies-McGraw-Hill, Simon
& Schuster, Penguin Group USA, Pearson Education, and Wiley-brought similar
proceedings on 19 October 2005.
These authors and publishers allege
that Google is engaging in large-scale copyright infringement, because the
project involves scanning and digitizing (and therefore copying) of
in-copyright works, in order to make them searchable. Google however, is
arguing that the creation of an easy to use index of books is fair use under US
copyright law, and falls squarely within 'fair use' as it was expressed in the
Kelly
v. Ariba Soft case (US Court of Appeals for the Ninth Circuit) which held
that copying of entire images was a fair use when that copying did not
interfere with owners' markets and when the copying resulted in a clear public
benefit in that it made the internet easier to search and more accessible.
Users searching Google Print will see links in their search results
page when there are books relevant to their query. Clicking on a title will
deliver a Google Print page where users can browse the full text of public
domain works, but only brief excerpts and/or bibliographic data of material in
copyright.
There have been various views provided regarding how
Google's activities fit within the current legal and information resource
framework. To see some such views, Audio and MP3 versions of a
public forum entitled
"Google: Infinite Library, Copyright Pirate, or Monopolist?" held in Canberra,
can be accessed here.
Further information is also provided on the
OpenDemocracy
website.
[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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