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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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February
2004
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[1] About this Publication
[2] Australia- U.S. Free Trade Agreement
Concluded
[3] CLRC reference: Crown Copyright Issues papers released
[4] KaZaa: Australian Attack
[5] EU developments
[6] Canadian Record
Industry follows suit
[7] MGM v 321 Studios: Hollywood victory
[8] I
can copy this, 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/issue.htm. If you have any
suggestions as to what should go in the next issue, please let Miranda Lee know
by email: (mlee@nla.gov.au).
Nothing in this publication constitutes legal advice.
[2]
Australia- U.S. Free Trade Agreement Concluded
After a year in
negotiation (see Jan IPW
2003 )and much speculation, the Department of Foreign Affairs (DFAT)
announced the conclusion of the Australia- United States Free Trade Agreement
on 8th February.
DFAT has released a
Facts Sheet
broadly outlining the terms of agreement.
The US Trade Representative
has also released a
Facts
Sheet on the Agreement.
In respect of continued equitable access
to copyrighted material and the future of the public domain, the announcements
bodes ill. The broad outcomes of the negotiations will:
· set
standards of intellectual property protection beyond those provided by
multilateral agreements such as the WTO TRIPS agreement and WIPO Treaties
· require "harmonisation" of Australian law with US intellectual
property laws
· create an extended term of copyright protection
· create an expedited process that allows for copyright owners,
Internet Service Providers and subscribers to deal with allegedly infringing
copyright material on the Internet
· set agreed criminal standards
for copyright infringement
Australia and the United States have also
agreed to work to further "harmonise" laws and practices relating to other
areas of intellectual property such as patents, trademarks and designs.
The obligations created by AUSFTA will set standards that Australian
copyright law and policy have to meet in the near future. The AUSFTA agreement
will now go through an approval process in order to come into force. In
Australia, the agreement will not be in effect until the agreement has passed
through Parliament, necessary amending regulation has been passed and an agreed
date for entry into force has been determined. The
approval
processes are outlined by DFAT.
No further details over the terms
of the agreement have been released but the text of the agreement is expected
to be available in early March.
[3] Crown Copyright Issues Papers
released
In November 2003 the Attorney- General announced a reference
for inquiry by the Copyright Law Review Committee (CLRC). The reference will
focus on issues relating to government ownership of copyright material and an
Issues Paper on the reference is now available and can be accessed through the
CLRC website (go to "present
inquiries").
The Issues Paper looks at:
- whether the legislative
scheme establishing government ownership of copyright is appropriate;
-
whether, as a matter of public policy, the government should own copyright in
material produced by the executive, judicial and legislative arms of
government; and
- any options for reform, legislative or otherwise, and the
costs and benefits of those options.
There is no uniform international
treatment of government copyright. In the spectrum of regimes, Australia's
copyright laws gives relatively strong protection to Government materials.
Currently the Copyright Act provides that copyright material will be
granted to the Crown where works are made under the direction or control of the
Crown or where work is first published by the Crown.
Most of the
options for reform outlined in Issues Papers relaxes crown copyright and/or
crown prerogative in varying degrees.
The window for public submissions
is now open and the deadline for submissions is 26th March 2004.
[4]
KaZaa; Australian attack
Early in February, Music Industry Privacy
Investigations (MIPI) obtained court orders allowing its investigators to
access documents and other electronic records about Kazaa's activities in
Australia. Twelve premises were raided in three states including the premises
of Brilliant Digital Entertainment, Akamai Technologies AAP, NTT Australia,
Telstra Corporation and those of three universities - the University of
Queensland, the University of New South Wales and Monash University.
MIPI used a special "Anton Piller" court order to seize material; the
evidence obtained during the raids is intended for use in court proceedings in
Sydney. Anton Piller orders are granted where the court has been satisfied the
applicant has a very strong case. The order is used to seize evidence in cases
where the item sought by the applicant is likely to be destroyed if another
legal instrument, such as a subpoena or order of inspection, is obtained. The
gathering of evidence through the use of an Anton Piller order (rather than by
subpoena or pre-trial discovery) sets a dangerous precedent for P2P systems
administrators because of the accompanying costs and obligations of compliance
(due to the inability to prepare) with an Anton Piller order and the implicit
dilution of their legal rights.
Sharman networks have applied to the
federal court to have the order and material gathered invalidated, arguing that
not all material facts were disclosed to the judge at the time the raiding
parties applied for it. In particular, Sharman's lawyer highlighted the
company's cooperation in producing documents to courts in other jurisdictions
(parallel cases are currently in progress in the U.S. and the Netherlands) as
one reason why the Anton Piller order should not have been granted.
The
issue of duplication was also raised by Sharman's solicitors who submitted that
the case should be set aside because it addressed substantially the same issues
as the case currently being fought in the US. The judge accepted the submission
by the counsel for the music industry who maintained that the Australian case
was distinguished by the emphasis in the Australian law on the operation of the
software rather than the structural aspects of the technology. This difference
in emphasis was also offered as a possible reason why Anton pillor orders were
necessary.
The parties agreed the information obtained under the order
would be kept confidential until a further order was made.
A ruling on
the order is expected in two or three weeks.
[5] Guidelines to UK
Copyright Changes
The Libraries and Archives Copyright Alliance
(LACA) (which is convened by CILIP) and Museums Copyright Group have released a
guidebook to help staff in museums and galleries, archives, libraries and
information services concerning the recent changes to UK copyright law in
November last year (see IPW Nov 2003).
The guide is
available from the LACA website.
[6] Canadian Record Industry follows suit
The Canadian Recording
Industry Association (CRIA) has filed court requests seeking the identity of 29
subscribers from five ISPs. The information obtained from the requests will be
used to file copyright infringement suits against the named subscribers in an
action parallel to that currently in progress in the U.S. as initiated by
RIAA.
The subscribers whose identities are sought are those held by the
CRIA to have uploaded large amounts of copyrighted material for sharing.
The action follows a ruling issued in December by the Copyright Board
of Canada in which the Board maintained that downloading from file-swapping
services appeared to be legal under Canadian law (see
Dec IPW 2003) as
such activity were intended for non-commercial personal use. Although at the
time, the CRIA disagreed with the Board's ruling, the CRIA has picked up on the
other end of file sharing chain by targeting uploaders who have no such
protection. The suit in Canada will raise the same issues and face
substantially the same challenges as the ongoing suit currently taken by the
RIAA in the US; the issues of privacy and ISP liability presents some obstacles
to both the American and Canadian suits.
A hearing is scheduled in
early March in Canadian federal court.
[7] MGM v 321 Studios:
Hollywood victory
A Californian judge has ruled that 321 Studios must
stop selling software that lets customers copy their DVDs for backup and
personal use.
The case began last year when after immense pressure from
studios, 321 Studios filed suit asking the court to declare that their product
(a software package that allows owners of DVDs to make personal use backup
copies) does not violate the DMCA (see
IPW May 2003). 321
argued that its product had substantial non-infringing uses which fell within
the "fair use" exception of the Copyright Act and asserted the need for
researchers and programmers to discuss encryption and decryption methods. MGM
countersued for damages and a permanent injunction from the sale of the
product.
During arguments made last May the attorney for the studios
said 321's software bypassed the encrypted locks (CSS) on his client's
copyright movies and that this violated the DMCA which provides that any
mechanism that breaks a digital lock that protects copyright content is
illegal. The lawyer for 321 Studios, had countered that consumers had the right
to access the encrypted content in any way they choose, if they had already
purchased the DVD. The judge sided with the movies studios, maintaining that
CSS, being an effective (although not strong) technological protection measure
came within the express terms of the statute and circumvention of CSS thereby
was a contravention of the DMCA.
The ruling ordered 321 Studios to stop
"manufacturing, distributing or otherwise trafficking in any type of DVD
circumvention software" in seven days. 321 Studios have said they intend to
appeal the ruling, and will seek a stay from the judge during the appeal
process.
The
order
can be accessed through EFF website.
[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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