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The ADA Monthly Intellectual Property
Wrap-Up
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A monthly 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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Apr
2002
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[1] About this publication
[2] New code of conduct for copyright
collecting societies
[3] Canadian Supreme Court decision rules in favour of
copyright balance
[4] 'Hardwired' fair use? A possible future for fair
use/dealing after all?
[5] CARP casts stone in Webcast pool: murky future
for Internet radio?
[6] I can copy, right?
>[1] About this
publication
This summary of recent IP (but chiefly copyright)
happenings of relevance to Australia is published every month by email and on
the Australian Digital Alliance website at
http://www.digital.org.au/issue/ipwapr02.htm.
If you have any suggestions as to what should go in the next issue, please let
the Nick Smith know by email: (nsmith@nla.gov.au).
Nothing in this
publication constitutes legal advice.
>[2] New code of conduct
for copyright collecting societies
Copyright collecting societies
exist to collectively administer copyright rights on behalf of numerous author
and/or publisher members. They provide a useful service to both members and
users by removing the need for every member to strike a specific licence
agreement with every potential user but have occasionally attracted criticism
for lacking transparency or being unaccountable. Examples of collecting
societies include the Copyright Agency Limited (www.copyright.com.au) which repesents
authors and publishers of text and images, and the Australasian Performing
Right Association (www.apra.com.au) which
represents composers and publishers of musical works.
In collaboration
with the Government, the collecting societies have developed a new code of
conduct to 'promote confidence' in the collecting societies and set out the
'standards of service' that clients can expect.
The new code binds the
societies to treat its members and licensees 'fairly, honestly, impartially,
courteously and in accordance with its Constitution'. It all requires that all
dealings be 'transparent'. Such requirements mean little if they are not
enforced in some manner. The code addresses this in several ways: (i) it
requires each society to publish a statement of code compliance in its annual
report; but more importantly (ii) it provides for the appointment of a Code
Reviewer who will, on an annual basis, monitor code compliance. The Reviewer
must have 'specialist expertise in administrative law, copyright law and/or
licensing practices' and is to be appointed by the societies themselves. It is
expected that the credibility of the code may well rely upon who is appointed
as the Code Reviewer; the failure to appoint someone who is sufficiently
independent will harm community persepction of the new code of
conduct.
A copy of the code can be found at:
http://www.apra.com.au/PDFs/code%20of%20conduct%2029.10.01.pdf
>[3]
Canadian Supreme Court decision rules in favour of copyright
balance
Canada's copyright regime has often been seen as very
'rightsholder-friendly' compared with other jurisdictions such as the United
States or Australia. However, a recent decision by the Canadian Supreme Court
may alter this perception.
The decision in Theberge v Galerie d'Art
du Petit Champlain was handed down last month. The plaintiff was Claude
Theberge, a well-known Quebec painter, who sued an art gallery for transferring
legitimately purchased posters of his work onto canvas. the transfer process
lifted the ink off the posters and moved it directly onto canvas (presumably to
better preserve the art works). This process did not result in any new
reproductions, the original poster was left blank.
Theberge, however,
was outraged and sued. (He apparently alleged an infringement of the right of
reproduction. It was not clear whether he alleged any breach of moral rights).
After some success for Theberge in lower courts, the matter reached Canada's
highest court which ruled 4-3 in favour of the Gallery, holding that what
occurred was merely a 'transfer' and not a 'reproduction'.
Various
members of the court followed this up with some juicy comments on the role of
copyright. Writing for the majority of the Court, Justice Ian Binnie stated
that 'the proper balance among these and other public policy objectives lies
not only in recognizing the creator's rights but in giving due weight to their
limited nature . . . Once an authorized copy of a work is sold to a member of
the public, it is generally for the purchaser, not the author, to determine
what happens to it.'
Furthermore, he said that: 'excessive control by
holders of copyrights and other forms of intellectual property may unduly limit
the ability of the public domain to incorporate and embellish creative
innovation in the long-term interests of society as a whole, or create
practical obstacles to proper utilization.'
It's nice to see a few very
senior Canadian judges promoting the view that a copyright regime must be
strictly scrutinised to ensure that it is in the public
interest...
>[4] 'Hardwired' fair use? A possible future for
fair use/dealing after all?
It's often said that copyright
exceptions (like fair use in the US or fair dealing in this country which
permit some use of copyright material without payment or permission for
purposes such as research) will not survive digital rights management (DRM)
technologies. DRM technologies, built into the copyright works themselves or
into the hardware or software needed to view such works, are designed to make
infringing use impossible; it is suggested that this will tend to make all
unauthorised use (including that permitted under fair dealing, for example)
impossible.
But does it really have to be this way? It would seem to be
impossible to codify into software all the intracacies of all copyright
exceptions (if a roomful of lawyers and judges cannot agree on what exactly is
permitted then how can a computer program acheive this feat?). But it may be
possible to code some reasonable facsimile of 'fair use' into DRM
technologies.
This intriguing question was the subject of a full-day
workshop 'Fair Use by Design' at the Computers, Freedom and Privacy 2002
Conference (http://www.cfp2002.org/),
held recently in San Francisco. The workshop featured lawyers and technologists
trying to get a handle on such fundamental questiuons as: what exactly does
fair use permit? and what is DRM today capable or not capable
of?
Several ways of allowing for fair use of DRM protected material were
discussed. Dan Burk (University of Minnesota) and Julie Cohen (Georgetown
University), in a draft paper, suggested that trusted third parties hold keys
to unlock DRM that can be accessed by legitimate individuals or organisations.
This may result in a cumbersome and bureaucratic process but at least decisions
as to what is permissable would remain with humans rather than machine
intelligence. However, Burk and Cohen also point out that the choice of trusted
third party would probably be made by the rights holder, allowing them to
dictate the paramters of fair use (they could select a fair use 'conservative'
rather than a fair use 'liberal').
Burk and Cohen also suggest coding
fair use into DRM itself but contend that 'an algorithm-based approach to fair
use is unlikely to accommodate even the shadow of fair use as formulated in
current copyright law. We are not optimistic that system designers will be able
to anticipate the range of access privileges that may be appropriate in order
for fair uses to be made of a particular work. Neither are we optimistic that
system designers will be able to anticipate the types of uses that would be
considered fair by a court. Fair use is irreducibly a situation-specific
determination.' Most other speakers at the workshop echoed this view that the
intricacies of the law could never be accurately reflected by computer
code.
Molly Shaffer Van Houweling of Stanford suggested that DRM
technologies could be used to affix a 'public domain' label to works, either
for works for which copyright had expired, or for new works which are 'gifted'
immediately to the public domain. She also expressed concern at the very idea
behind technologies that help rights-owners to preserve fair use: 'helping
creators give others explicit permission to use their work does not address a
key purpose of the fair use exception—allowing certain reuses of
copyrighted works even though the copyright holder objects.'
Others
echoed this problem in the context of 'rights permission languages' such as
XrML that allow copyright owners to turn user permissions on or off. These will
be ineffective in preserving fair use unless some aspect of their use is
mandatory (just as the law is mandatory). However, some rights-holders may be
convinced that preserving aspects of fair use will make their products more
attractive to consumers.
Ultimately, the take up of fair-use friendly
DRM technologies will depend upon right-holder interest (which in turn might
depend upon consumer pressure), unless some non-intrusive way can be found for
Government to mandate legal standards in new DRM code.
Details of the
workshop can be found at:
http://www.cfp2002.org/program/fairuse.shtml
>[5]
CARP casts stone in Webcast pool: murky future for Internet
radio?
One of the joys of the Internet has been Internet radio; the
possibility of being able to access thousands of radio stations around the
world, catering to the most obscure musical tastes, rather than being limited
to the handful of stations in your immediate geographic area. Internet radio
stations typically began with the simulcasting of conventional broadcast
stations but grew to include stations that solely exist on and for the
Internet.
There was always a copyright issue here to be faced; even the
smallest webcasters knew that at some point they would have to pay the piper.
But a recent ruling in the US on webcast royalties may have jeopardised the
vitality (and perhaps existence) of Internet radio as we know it.
Under
the Digital Millennium Copyright Act, the Librarian of Congress, who has
responsibility for the US Copyright Office (USCO), is required to set sound
recording performance royalty rates for webcasters by May 21 2002. The
mechanism for rate-setting is the USCO's Copyright Arbitration Royalty Panel
which recently held hearings to decide between the different parties' points of
view. (Note that this process is to set a royalty rate for performance of sound
recordings (which are typically owned by a record company) as opposed to the
underlying musical work which is typically owned by the composer. In the US,
conventional broadcasters do not pay to broadcast sound recordings; the payment
of record companies for the broadcast of sound recordings is unique to the
digital environment).
The CARP finding, which must be confirmed by the
Librarian of Congress, was that webcasters (as distinct from
Internet-simulcasting broadcasters) must pay 0.014 cents per listener per song.
(The idea of a rate set as a percentage of webcaster revenue, which is a common
model for broadcast royalties in the US and in Australia was rejected by the
Panel because it would result in widely varying royalty payments. This is
chiefly because many webcasters earn little or no revenue).
Many
webcasters are sharply critical of this proposed rate, claiming that this
royalty amount will represent about 200% of revenue. According to WIRED
magazine, Kurt Hanson, publisher of Radio and Internet Newsletter, said the
proposed fees would 'amount to about $9,000 [USD]a month for any mid-sized
Webcaster'. Based on figures used by the CARP, this would seem to represent an
audience of about 6000.
Other webcasters were even more vocal. Robert
Pullman of Inetprogramming said: 'rates proposed are higher than any other
media operations – a proposal of $200 per person per stream per year in
addition to the other licensing and operating costs of a business is ludicrous.
These proposals have only one thing in mind and that is to eliminate streaming
broadcasts on the Internet from any source except the largest corporations, and
threatens to cause the loss of thousands of jobs.'
Web-simulcasting
licensed broadcasters were set a royalty rate of 0.007 cents per listener per
hour. They currently pay nothing to broadcast sound recordings because of the
'proven promotional value' of such broadcasts. Because of the very limited
webcasting royalties, many conventional broadcasters will simply elect not to
simulcast.
Certainly the proposed royalty rate will also make many
smaller and hobbyist webcast stations untenable. Interestingly, the rate sought
by the record companies was thirty times higher at 0.4 cents an
hour.
Webcasters announced a 'day of silence' on 1 May in protest at the
rate (and the onerous auditing requirements). It would seem that the US
Internet radio scene is set to shrink considerably if the new regime is
adopted.
The Panel's finding can be found at:
http://www.copyright.gov/carp/webcasting_rates.pdf
>[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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