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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 Australian intellectual property and the public interest, published
by the Australian Digital
Alliance.
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February
2001
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[1]
About this publication
[2] Parallel importation legislation
introduced
[3] Countdown to Digital Agenda commencement
[4] The end of
Napster?
[5] Libraries weigh in on Tasini v New York Times
[6] Federal
court victory for 'The Panel'
[7] Domain name interim report
[8] 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/ipwfeb01.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).
>[2]
Parallel importation legislation introduced
28 February saw the
Copyright Amendment (Parallel Importation) Bill 2001 introduced into the House
of Representatives. This Bill can be found on the Parliamentary website (www.aph.gov.au -- go to
'Legislation').
This Bill will remove parallel importation restrictions
on 'computer software products, including interactive computer games, books,
periodical publications (such as journals and magazines) and sheet music'. This
will mean that anyone will be able to import lawfully-made copies of such
material for commercial sale from wherever they can be sourced around the
world. The importation of pirate material (copies made without the permission
of the copyright owner) will still be illegal.
This Bill, once passed in
the House of Representatives still has to go to the Senate where it is not
guaranteed passage. If it does make it into law, the new importation provisions
will commence one year after signature by the Governor-General.
This
legislation follows the passage of 1998 legislation which permitted the
parallel importation of compact discs.
>[3] Countdown to Digital
Agenda commencement
The Copyright Amendment (Digital Agenda) Act
2000, the biggest overhaul of the Copyright Act since its enactment,
commences on 4 March 2001. Many interested groups prepared themselves for its
passage. One sign of things to come came in the form of a message from Grant
Bayley of the hackers' group 2600 Australia.
Grant had previously hosted
the device DeCSS on his sites. (DeCSS is a tool to allow users to view DVDs on
PCs running operating systems other than Windows (such as Linux) by
circumventing encryption. Copyright owners claim it is a criminal device
designed to aid DVD piracy and are engaged in legal action with 2600 in the US
over DeCSS). He announced that he would be taking down DeCSS because of the
threat of legal action (even criminal prosecution) which he does not have the
resources to fight.
Grant and many other people feel passionately about
their right to use whatever technology they like. As he said:
'Finally,
I'd warn commentators that will inevitably try and deal with this issue again
in a week or so (there was some comment today in SMH and Australian IT) that
this issue cannot be compared to the plight of Napster. One audience downloads
content at zero cost to them (even if only to sample it) - the other buys their
content from a regular store at full price and just wants to watch what they
have paid for on a player of their choice and using whatever computer operating
system they choose. BIG difference.'
>[4] The end of Napster?
Planet Earth's biggest copyright news story took a dramatic turn
this month when the United States Court of Appeals for the Ninth Circuit
largely found against the famous music-swapping site. 'The panel [of judges]
agreed with the district court that the record companies presented a prima
facie case of direct copyright infringement by Napster users. The panel also
agreed with the district court's rejection of Napster's affirmative defense
that its users are engaged in fair use of the copyrighted material.'
The
court also 'upheld the district court's conclusion that Napster may be
secondarily liable for the direct copyright infringement under two doctrines:
contributory copyright infringement and vicarious copyright
infringement.'
The case was sent back to the district court for Judge
Patel to modify her original injunction against Napster (which was overly
broad). Once this injunction is in place, it's the end of the line for Napster
and presumably Napster's users will drift off to other systems that are less
subject to legal control such as Gnutella.
In an attempt to forestall its
demise, it offered the record companies a settlement figure of $1 billion US
dollars. The record companies are yet to respond.
The 9th circuit's
opinion can be found at:
http://www.ca9.uscourts.gov/ca9/newopinions.nsf/opinions+by+date?OpenView(The
decision was handed down on 12/2/01)
>[5] Libraries weigh in on
Tasini v New York Times
American library groups have filed a Friend
of the Court brief in support of Jonathan Tasini, a freelance writer and
President of the National Writers Union who has sued the New York Times for
publishing his work electronically without his permission. The NYT claimed that
when Tasini and other writers sold their work they also granted permission for
the work to be commercially exploited by publishers in electronic databases
without the writers receiving a cent. The case is soon to be heard by the
Supreme Court.
The publishing industry has claimed that if it loses it
will have to delete its electronic databases of articles and libraries will
have to treat their collections similarly. However, American library groups
have strongly disputed this.
They echo the writers' position that no
deletion of work is necessary, simply that the free-lancers be compensated for
the on-going use of their work.
More information:
The (US) National
Writers' Union site: http://www.nwu.org/tvt/scbriefs.htm
>[6]
Federal Court victory for 'The Panel'
'The Panel', Channel 10's
occasionally amusing chat show, lived to quip another day after successfully
resisting a law-suit from the Nine Network. Nine argued that the Panel's
practice of showing short clips from the programming of other networks (notably
Nine) constituted infringement of copyright.
The Federal Court found
that the clips were not 'substantial' (and therefore broadcasting them could
not be an infringement). As a result,he defence of fair dealing was not
required. However, Justice Conti gave the view that 'that had it been necessary
for me to decide upon such defences [fair dealing for criticism or review or
reporting the news], I would have upheld either one or both of such defences in
relation to eleven out of the twenty programmes involved, and would have
rejected the same in relation to the remaining nine
programmes.'
>[7] Domain name consultation report
In
its second public consultation report, auDA's Name Policy Advisory Panel has
refined its proposals in relation to two important questions - who is eligible
to obtain a domain name in the .au domain space, and what domain name can they
have? (Domain names are web names such as www.this-is-a-domain-name.com.au auDA
is the regulatory body which oversees their use in Australia).
The
second report can be found at: http://www.auda.org.au/panel/name/
Briefly, it recommends that there be a direct connection between the domain
name sought and the person seeking that domain name; typically this connection
must be the name of a natural person (including a nickname) or a trade mark.
The Advisory Panel also recommended against opening up generic names for use as
domain names (generic names as www.wine.com.au). Public input on such issues is
sought by 16 March 2001.
The Advisory Panel also suggested that many of
the problems that parties identified with the domain name system (and echoed by
the ADA in its submission) could be alleviated by the creation of new 2nd level
domains. Such 2LDs would better allow individuals and non-profit groups from
access to the domain name system and prevent them from being excluded by
commercial interests.
The Advisory Panel undertook to consult separately
on this issue, beginning in April 2001.
>[8] 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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