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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Feb
2002
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[1] About this publication
[2] Copyright Tribunal hands down
CAL/schools decision
[3] US Supreme Court to hear copyright extension
case
[4] Data cable falls foul of US copyright law
[5] Mandatory copy
protection in hardware: one step closer...
[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/ipwfeb02.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] Copyright Tribunal hands
down CAL/schools decision
The Deputy President of the Copyright Tribunal
handed down a decision in the 'schools' case on 8 February. The decision
followed an application by the Copyright Agency Limited (an Australian
copyright collecting society which administers rights on behalf of authors and
publishers) to have the Tribunal set copying rates for Government and
independent schools.
Schools (along with other educational
institutions) may copy material for educational purposes under Part VB of the
Copyright Act, provided that certain conditions are followed and that
remuneration is ultimately paid to rights-holders. This remuneration can be set
by agreement between the parties or, more commonly, by application to the
Tribunal.
The Tribunal set the following rates for school copying:
- A base rate of 4 cents a page;
- 8 cents a page for artistic works and poetry;
- 6 cents a page for plays and short stories;
- 40 cents per page for works copied onto
slides, overhead transparencies and display copies.
The new rates are retrospective to 1 January
1997 and are indexed by CPI. The Tribunal declined to set a further rate for
digital copying, saying that there was insufficient evidence to allow it to do
so. In the second quarter of 2002, the Tribunal will hear a case between CAL
and the universities to set copying rates for that sector, including a new
digital rate.
More information about the schools case can be found at:
http://www.austlii.edu.au/au/cases/cth/ACopyT/2002/1.html
[3]
US Supreme Court to hear copyright extension case
In a decision
which surprised many and sent waves of something like excitement through the
copyright community, the US Supreme Court granted certiorari in the case of
Eldred v Ashcroft. This means it will hear the plaintiffs appeal that the Sonny
Bono Copyright Term Extension Act (CTEA)of 1998 is unconstitutional because it
violates the copyright clause of the US Constitution. This clause is as
follows:
"[The Congress shall have power] To promote the progress of
science and useful arts, by securing for limited times to authors and inventors
the exclusive right to their respective writings and discoveries".
When
the Constitution of the United States was first adopted, Congress clearly took
the phrase 'limited times' seriously. Copyright was available for just 14 years
in the first instance with a second 14 available upon renewal. Today, most
countries allow for copyright to last for the life of the author plus 50 years.
The EU and the US (following the CTEA) extended this duration again to the life
of the author plus 70 years.
In the case of corporate works, the US
extended their duration from 75 years to 95 years. Hollywood, especially
Disney, has strongly supported this extension, fearing that some of its most
popular intellectual property will fall into the public domain. For example,
Mickey Mouse was due to enter the public domain in 2004; instead he remains the
property of Disney until 2024. (Of course, even if Mickey was in the public
domain, use of his image would still be subject to trademark law).
Eric
Eldred and his fellow public-domain publishing plaintiffs challenged the CTEA
arguing that it was unconstitutional. They lost in the US District Court and
then lost again 2-1 in the District of Columbia Court of Appeals (with a
spirited judgement from the dissenting Judge David Sentelle).
If the
Supreme Court had not accepted their appeal, it would have been the end of the
road. The Bush Administration opposed the appeal, claiming that there is no
limit on Congressional power to extended copyright. (Lawyer and commentator
Lawrence Lessig claims that copyright has been extended 11 times in the last 40
years). Furthermore the Administration claimed that there was no need to
reconcile copyright with the First Amendment guarantee of freedom of
expression.
It is hard to guess how the Court will rule. The US Supreme
Court is famous for its 5-4 conservative-liberal divide (with Reagan appointee
Sandra Day O'Connor as the swinging voter). However, the case of Eldred will
likely not fall along 'party' lines. On the liberal side, Judge Breyer wrote an
article in 1976 entitled 'The Uneasy Case for Copyright: A Study of Copyright
in Books, Photocopies, and Computer Programs." (Harvard Law Review, 284:281,
1976.) He argued that it may not be necessary to offer any copyright protection
to these works.
On the conservative side of the fence, Judge Scalia, is
a 'strict constructionist'. With any luck, he will rule that when the Framers
of the Constitution wrote 'limited times', they did indeed mean limited
times.
Whatever the decision, intense scrutiny of the rationales and
consequences of copyright by what is arguably the most important court in the
world should have a strong impact on world copyright jurisprudence.
No
hearing has presently been scheduled.
[4] Data cable falls foul of US
copyright law
Many commentators have asserted that the new
anti-circumvention provisions contained in the US Digital Millennium Copyright
Act (DMCA) of the Australian Copyright Amendment (Digital Agenda) Act 2000 will
have a harmful impact on the development of new technologies. Specifically, it
was feared that useful hardware or software might be unintentionally outlawed.
A recent situation in the US illustrates what damage such laws may
cause.
(The anti-circumvention laws make it an offence to manufacture,
import or supply (or use in the US) devices which get around technological
protection measures such as software locks or password screens).
Here is
the background to the situation in the words of University of Minnesota
student, Colin McMillen:
"I'm currently enrolled in a Real-Time Systems
lab here at my university (the University of Minnesota). As part of the lab, we
are intending on using the Sega Dreamcast console as a real-time system; we'll
be writing a scheduler for it and some simple games."
"I recently
ordered a Dreamcast Coders' Cable from Lik-sang.com, a dealer based in Hong
Kong. The coders' cable is simply a serial cable with a special end to fit into
the Dreamcast's serial port. It allows you to upload your code from your PC at
115200 bps to the Dreamcast. This is a necessary item for amateur Dreamcast
coding (unless you want to fork out the money for the Dreamcast Broadband
Adapter, an expensive, no-longer-manufactured piece of hardware that does the
same thing, but with a higher transfer rate.) The package was supposedly
shipped UPS express, to arrive here in 3-5 days."
But the cable, a
simple piece of computer hardware, never arrived. After waiting 2 weeks,
McMillen emailed UPS customer service only to be told:
"Thank you for
your inquiry. We sincerely apologize for any inconvenience caused by this
matter. Our system indicates this package has been denied entry into the US by
US customs authorities due to the DIGITAL MILLENNIUM COPYRIGHT ACT. The shipper
of record has been notified and the package will be returned to the
shipper."
McMillen was unable to effectively protest the decision to US
Customs. He also did not receive any statement from Customs about which exact
provision of the DMCA his data cable was actually in violation of.
It
seems that US Customs took the action it did because it was blocking all
imports from Lik-sang.com. Lik-sang makes the NEO4 chip, a Playstation Chip
which allows Playstation owners to play games and even DVDs regardless of
region coding. Rights holders allege that this modified chip is used to allow
Playstation owners to play pirate games. (A similar modified Playstation chip
is currently facing court action in Australia).
So in order to block the
entry of piece of hardware of questionable legal status (the NEO4), US Customs
blocked a much wider range of hardware (it is seemingly difficult to confuse a
chip with a data cable). And those who had their technology blocked were not
informed that it had had happened or why or given any avenue of redress. This
tends to confirm the view of many commentators that the anti-circumvention laws
can have a chilling effect on the development of new hardware and
software.
[5] Mandatory copy protection in hardware: one step
closer...
The Next Big Thing (tm) in the protection of intellectual
property in digital form is the mandatory inclusion of copyright protection
measures in all hardware and software. This will mean that it will be
impossible for consumers (or anyone) to make unauthorised copies because the
technology that they use, from their PCs to their hard drives to their
Operating Systems to their applications, will simply not permit such
copying.
This had been the goal of many in the entertainment industry
for some time. In the now infamous words of Sony Pictures VP Steve Heckler when
Napster was in its heyday:
"Sony is going to take aggressive steps to
stop this. We will develop technology that transcends the individual user. We
will firewall Napster at source - we will block it at your cable company, we
will block it at your phone company, we will block it at your [ISP]. We will
firewall it at your PC."
The process of 'firewalling' unauthorised
copying 'at your PC' is going forward nicely. In a previous issue, I reported
on a proposed piece of American legislation, the Security Systems Standards and
Certification Act (SSSCA).
(see
http://www.digital.org.au/issue/ipwsep01.htm)
The SSSCA was proposed by Senator Fritz Hollings of South Carolina (see here
for a break down of campaign contribution received by Senator Hollings:
http://www.opensecrets.org/politicians/summary.asp?CID=N00002423&cycle=2002)
Senator
Hollings has now convened hearings of the Senate Commerce Committee (which he
chairs) to discuss the delicate issue of Federal Government mandated copyright
protection in all digital devices.
The hearings included such regulars
on Capitol Hill as Michael Eisner of Disney and Jack Valenti of the Motion
Picture Association of America. Opposing them were representatives of hardware
companies which strongly oppose such copy protection schemes as unworkable and
anti-innovative.
Senator Hollings opened the hearings with a prepared
statement: "Those Americans who do access top notch content online are often
stealing it. Every week a major magazine or newspaper reports on the thousands
of illegal pirated works that are available for copying and redistribution
online. Academy award winning motion pictures, platinum records, and emmy award
winning television shows - all for free, all illegal."
"When Congress
sits idly by in the face of these activities, we essentially sanction the
Internet as a haven for thievery. This problem cannot be minimized. Piracy is
growing exponentially on college campuses and among tech savvy consumers. Over
ten million people use file sharing sites on the Internet to download movies,
songs, and tv shows, with no penalty."
His solution to the Internet as a
haven for thievery:
"Senator Stevens and I are planning legislation that
would place a deadline on affected industries to come together to solve these
problems in private sector talks. If they do, we will empower government
enforcement so that all consumer devices comply with the private sector's
solution. If they don't, the Government's technologists and engineers, in
consultation with the private sector will step in."
Senator Hollings'
solution was readily supported by Disney's Eisner. He is also confident that
any copy protection mechanisms would not erode fair use: "Disney and other
content owners are not seeking to stop home taping or eliminate "fair use." We
are not here because we want to hinder libraries and college professors in
using portions of creative works for scholarly research. Nor are we here
because we want to interfere with consumers who wish to make a home copy of
Broadcast and basic cable TV programs for their own personal time-shifted
viewing. We are confident that the government can act to facilitate the needed
technology standards without endangering home taping or fair use."
Quite
how a copy protection device built into a PC will determine what is an unlawful
pirate copy and what is a legally allowed 'fair use' copy when this is a
determination that many lawyers cannot agree on is an interesting
question...
Senator Hollings' proposal was vigorously opposed by Leslie
Vadasz of Intel. He led off with a timely call for some perspective on the
issue: "The IT industry is all about innovation; we embrace and champion
technological progress. The content community, by contrast, has historically
feared technology – from the advent of sound recording, to the development
of the VCR, the DVD, the PC and other digital devices. Yet every advancement in
technology has proven to be a major growth catalyst for the studios.
Videocassette rental and sales totaled about 11 billion dollars last year,
exceeding box office receipts by some 2+ billion dollars. This is the device
once referred to by Jack Valenti as the “Boston Strangler” of the
film industry. Other “attackers” of the film industry include the
DVD, which added another 5.9 billion to studio receipts in the last year. It is
important to keep these facts in perspective when reviewing claims of imminent
threats to the health of the film industry."
He went on to say that:
"This dynamic of innovation would be choked by any attempt to regulate the
design of products solely for the benefit of one industry. Designing products
through a regulatory process, as some studios have advocated, would inject
political influences into technology development in very destructive ways.
Investment and innovation will both suffer, as a fear of entanglement with
government processes will have a chilling effect on investors and subject new
ideas to “reg review”."
He also spoke of the capabilities that
consumers have come to expect from the technological products that they own:
"Consumer rights to enjoy powerful technology products, with the robustness
they have come to expect, and their right to fully enjoy content in accordance
with what the law permits, would both be greatly diminished if the
studios’ “wish list” of content protection objectives were fully
implemented".
It's lucky that an Intel executive was there to put this
point of view across because you certainly couldn't expect to see a genuine
consumer representative invited to this hearing as a witness...
Needless
to say, Mr Valasz received a rough time before the Committee according to
various sources, so much so that he felt the need to supply the Committee with
a clarifying statement soon afterwards. There is little doubt that Senator
Hollings will be pressing forward with his legislation.
Further
information on the hearings can be found here:
http://commerce.senate.gov/hearings/hearings.htm
.
>[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. |
