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The ADA Monthly Intellectual Property Wrap-Up ---------------------------------------------------------------------------------------
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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August 2001
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[1] About this publication
[2] Government response to IP and Competition Report released
[3] Adobe e-book hacker, Sklyarov, formally charged
[4] Submissions close for Copyright vs Contract review
[5] US Copyright Office releases report on DMCA
[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/ipwaug01.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] Government response to IP and Competition Report released
The Federal Government released its response to the recommendations of
the Intellectual Property and Competition Review Committee (IPCRC). The
IPCR Report was commissioned by Government as part of an on-going
review of all legislation relevant to competition policy.
The final report can be found here: http://www.ipcr.gov.au/ipcr/finalreport1dec/welcome.html
The report addresses the Copyright Act 1968, Patents Act 1990, Trade
Marks Act 1995, Designs Act 1906 and Circuit Layouts Act 1989. Of most
interest to the ADA are the recommendations concerning copyright, and
in particular, the recent digital reforms.
Further treatment of the IPCR report can be found in the December 2000
issue of the ADA Monthly IP Wrap-Up at: http://www.digital.org.au/issue/ipwdec00.htm
The Government's quite speedy response is supportive of the Report --
itself unsurprising because the Report generally approved recent
Government directions in copyright policy. The Response explicitly
rejects only single recommendation, relating to broadcast royalty
fee-capping; it also accepts a few recommendations only in part or
subject to further study.
With respect to copyright issues, the Government agreed with the
Committee that:
- there was no
present case for extending the duration of copyright from the life
of the author plus to year to the life of the author plus 70
years;
- the fair
dealing balance between rightsholders and copyright users that was
struck in the Digital Agenda Act was appropriate.
- there is a
concen that technological locks, in conjunction with licence
agreements, are being used to displace the traditional copyright
balance and this merited further study. (The Government stated
that the current CLRC reference would give this issue the
attention it so richly deserves);
- Part II of the
CLRC's Simplification Report not be implemented due to the
uncertainty that a new regime would cause; and
- s. 51(3) of
the Trade Paractices Act (the special IP treatment clause) to give
IP-related matters potentially less protection from what would
otherwise be violations of the TPA.
The Government also referred often to the much-vaunted three year
review of the Digital Agenda Act which will be used to consider many of
the issues raised by the IPCR.
The Government's response can be found here:
http://www.law.gov.au/infopack/
>[3] Adobe e-book hacker, Sklyarov, pleads 'Not Guilty'
Dmitry Sklyarov, the Russian programmer who wrote the code that
circumvents Adobe's e-book format, pleaded 'not guilty' to the charges
brought against him and his boss at Elcomsoft, Alexander Katalov.
(Further details on Sklyarov's arrest can be found in last month's
issue at: http://www.digital.org.au/issue/ipwjul01.htm)
Sklyarov, after being arrested at a Las Vegas conference and held
without bail for 2 weeks, was indicted by a grand jury on 28 August.
The defendants were each indicted on: (i) one count of conspiracy to
traffic in technology primarily designed to circumvent, and marketed
for use in circumventing, technology that protects a right of a
copyright owner, and (ii) two counts of trafficking in technology
primarily designed to circumvent such technology along with (iii) two
counts of trafficking in technology marketed for use in circumventing
such technology.
This is the first criminal indictment brought under the DMCA because of
the profit-motive underlying the actions of the defendants.
Although the software was written in Russia, the website from which it
was sold was apparently hosted in Chicago.
Sklyarov faces up to 25 years in prison - five years for each violation
- and fines of up to $2.25 million. ElcomSoft faces a $500,000 fine
(Katalov was indicted on behalf of his company and can not face jail).
Commentators have speculated that the Department of Justice will only
proceed against the company rather than against Sklyarov, who jailing
would make him (more of) a cause celebre.
>[4] Submissions close for Copyright vs Contract review
With 27 Submissions received from interested parties, the Copyright Law
Review Committee has begun considering the issue of the relationship
between copyright law and contract.
The submissions, from such groups as the ADA, the Copyright Agency Limited,
the National Library of Australia, the Australian Publishers
Association and the Australian Copyright Council, are split fairly
evenly between rightsholder bodies which assert that 'freedom of
contract' should be paramount, and 'copyright user' bodies which assert
that the copyright law as enacted by Parliament should prevail.
The International Intellectual Property Alliance, a coalition of 7 US
trade associations, notes that contracts which would modify copyright
exceptions do exist: "The Issues Paper begins by correctly noting
that 'licenses to use copyright works ... may contain clauses that
purport to exclude or modify the statutory exceptions to copyright
infringement.'"
In contrast, a number of other groups have no knowledge of any such
agreements. According to CAL:
"35.CAL is not aware of any Australian agreements relating to
digital works that excludes or modifies the limitations to the
exclusive rights of copyright owners.
36.CAL has been provided with a copy of the Australian Publishers Association's
(APA) submission to the committee. CAL notes that the APA approached
all of its members, approximately 88% of the book publishing industry,
none of whom could offer up any positive examples of contracts
expressly seeking to exclude or modify exceptions in the Act."
The IIPA, along with other rightsholder bodies, contend that licence
agreements are a more efficient means of setting 'user privileges' than
the copyright law. According to the IIPA:
"Ample historical and recent evidence makes clear that licenses
with terms that vary --from transaction to transaction -- including
from exceptions anticipated and codified in the copyright statute, can
be expected to become more common. This practice should not only be
considered permissible but, in most instances, beneficial. Put another
way, proposals to interfere with or restrict contractual freedom in the
licensing of access to or use of copyrighted materials should be
greeted with great skepticism, including those proposals deriving from
perceived inconsistencies between license terms and statutory
exceptions to copyright. Maximizing contractual freedom in this sphere
is in the best interests of copyright owners and the general consuming
public alike."
In contrast, the ADA and other bodies do not dispute the need for
vendors of copyright material to sell their works accompanied by a
licence agreement but argue that the exceptions in the Copyright Act
must be preserved as a set of democratically-accountable minimum
standards.
All submissions to the CLRC can be found here:
http://www.clrc.gov.au/clrc/pres_ref/what_Committee_doing.htm
>[5] US Copyright Office releases report on DMCA
The US Digital Millennium Copyright Act (their equivalent of our
Digital Agenda Act) contains provisions requiring the Copyright Office
(which is part of the Library of Congress) to report on “the effects of
the amendments made by [title I of the DMCA] and the development of
electronic commerce and associated technology on the operation" of
two provisions of the US Copyright Act.
These two provisions are section 109 and 117. Section 109 is known as
the 'doctrine of first sale' which allows the purchaser of a physical
copy of a work to control all further physical distribution of that
work (such as lending). Section 117 is an exception covering the making
of back-up copies of computer software.
This Report was released by the USCO in August 2001. It focussed
principally on three issues:
- "creation
of a “digital first sale doctrine;”
- creation of an
exemption for the making of certain temporary incidental copies;
and
- the expansion
of the archival copying exemption for computer programs in section
117 of the Act.
The USCO discussed a number of potential uses of
digital rights management technologies that might degrade the doctrine
of first sale but concluded that as the technologies were in their
infancy there was no justification for attempting to extend the
doctrine to the digital environment.
Similarly it concluded that that there might restrictions on the making
of back-up copies flowing from the effect of the DMCA and electronic
commerce but that these were presently insufficient to warrant
legislative change.
The USCO also came to the view that temporary reproduction made in the
RAM of a computer are covered by the reproduction right but should not
be given a blanket exemption but that certain 'buffer' copies made as
part of a 'licensed digital performance' should be given a legislative
exemption.
The report, which was required under section 104 of the DMCA, is
available on the Copyright Office website at http://www.loc.gov/copyright/reports/studies/dmca
/dmca_study.html
>[6] I can copy, right?
Yes, you can copy this publication. Feel free to send it to friends,
colleagues or people you've never met; print it off or put 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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