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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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Jan
2002
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[1] About this publication
[2] The Rise of an Australian
Napster?
[3] Copyright's 'Golan Heights': Golan v Ashcroft
[4] Norwegian
teen prosecuted over DVD hack
[5] UK Universities Copyright Win
[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/ipwjan02.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] The Rise of an
Australian Napster?
Kazaa is a peer-to-peer file trading program
developed in the Netherlands which may already have an Australian home. Kazaa
is widely-seen as one of the 'heirs of Napster' following Napster's 'taming' by
the US courts. Kazaa, which is part of the FastTrack system and similar in
principle to other file-sharing systems such as Gnutella and iMesh, has been
thought to be 'court-proof' because of its lack of central coordination of the
file-sharing network: once the application has been downloaded the file-sharing
system has no control of how its users make use of the system.
This
didn't protect Kazaa from a Dutch court decision that found it liable for
copyright infringement. A decision last month by Judge Orobio de Castro told
the network to block customers from trading illegal files by Dec. 13 or pay a
$45,000 a day fine. The service continued to permit downloads of its program
after the deadline until it abruptly stopped in mid-January 'pending a Dutch
court decision on January 31'.
But downloads were up and running again
by the end of January following the shock news that the site and the software
had apparently been sold to an Australian company, Sharman Networks Limited.
Little is known about this company; a search on the Australian Securities and
Investment Commission's National Names Index turns up no such company. Sharman
is apparently represented by a California public relations company which says
it is 'working to create all the materials to properly introduce Sharman and
its KaZaA property'.
Only the CEO of Sharman Networks is known: Nikki
Hemming, who was apparently formerly the CEO of failed Sydney theme-park
SegaWorld (plenty of theme, not much park).
It is probable that any
Napster-like service will fall foul of Australian copyright law just as Napster
was liable under US law. Unsurprisingly, the Australian Performing Right
Association (Australia's musical works licensing body) has announced that it
will be looking at the new Kazaa service closely. For its own part, the
'Australian' owned Kazaa, seems keen to head off legal action by (a) attempting
to be not-Dutch and therefore escape the reach of the Dutch courts and (b)
including copyright friendly language in its terms of use: 'KaZaA respects
copyright and other laws. KaZaA requires all KaZaA Media Desktop users to
comply with copyright and other laws. As a condition to use KaZaA media
desktop, you agree that you will not use KaZaA 's software to infringe the
intellectual property or other rights of others, in any way.'
This new
licence condition will probably be too little, too late. It will be interesting
to see what this new service does and why someone thought it was a wise
purchase given all the copyright baggage attached. Things will get even more
interesting if it does indeed pop up in Australia...
>[3]
Copyright's 'Golan Heights': Golan v Ashcroft
Like the high ground
contested by Israel and Syria, the copyright world has its own struggle for
(moral) high ground in the US case of Golan v Ashcroft. As well as being a
cheap excuse for a weak pun, this case is the successor to Eldred v Ashcroft,
and seeks to challenge the constitutionality of the Copyright Term
Extension.
In the Sonny Bono Copyright Term Extension Act of 1998, the
duration of copyright was pushed from the life of the author plus 50 years to
the life of the author plus 70 years. Critics have claimed that this violates
the copyright clause of the US Constitution which provides that Congress may
make laws: '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' by making a mockery of the concept of limited times.
Furthermore they contend that the extension infringes upon the First Amendment
guarantee of freedom of expression.
Eldred vs Ashcroft, which concerned
the rights of publishers of public domain literary texts, is currently seeking
review by the US Supreme Court. Golan v Ashcroft is concerned with the bite
felt by conductors of classical music. Lawrence Golan is a conductor and a
University of Denver music professor who claims that the copyright term
extension on sheet music puts the likes of Stravinsky, Shostakovich and
Prokofiev beyond his reach. He alleges that he is charged USD$1000 to rent
copies of their music (which he cannot afford) when he could have obtained them
for free without the copyright term extension.
The US Department of
Justice has filed a motion to have this suit dismissed. They have apparently
taken an even stronger stance than they took in Eldred v Ashcroft, arguing that
Congress has the power not only to extend existing copyrights, but also to
"restore" the copyright of work that has already entered the public domain.
They also assert that copyright is wholly immune from First Amendment
scrutiny.
The complaint was filed with the US Federal Court on 19
September. It is not known when the matter will be heard.
>[4]
Norwegian teen prosecuted over DVD hack
A Norwegian newspaper,
Aftenposten Nettutgaven, reported that Norway's 'white collar crime
unit' has arrested 18-year old Jon Johansen for writing the DeCSS utility which
bypasses DVD copy-protection. The Motion Picture Industry alleges that the
computer program is used to aid movie piracy.
Johansen, however, claims
that he co-wrote the program when he was 16 with two other programmers merely
to watch his legitimately-purchased DVDs on one of his PCs which ran the Linux
operating system; the DVD encryption on his personal DVDs prevented them from
running on non-Windows computers.
There has already been a great deal of
legal action in the United States over the dissemination of DeCSS brought by
the Motion Picture Association of America but this is the first time the
program's Norwegian creator has been charged, more than two years after the
program was created.
Johansen is being prosecuted under a law which
punishes "any person who by breaking a protective device or in a similar
manner, unlawfully obtains access to data or programs which are stored or
transferred by electronic or other technical means." If convicted, he may face
two years in prison.
Johansen was previously awarded with a national
Norwegian school prize for his software innovation. The "Karoline Prize" is
awarded yearly to "a Norwegian high school student with excellent grades who
makes a significant contribution to society outside of school".
>[5] UK Universities Copyright Win
A December 21
ruling by the United Kingdom's Copyright Tribunal has seen a major triumph for
UK universities. The Tribunal has ordered that separate payments for
course-packs be scrapped and that the single blanket fee should now also cover
artistic works. It was also ordered that the blanket fee be increased from
£3.25 to £4 but, taking the other changes into account, it is
expected that British Universities will save £5 million next year. The
new licence is also administratively much simpler than the previous
licence.
In its ruling, the Tribunal said: "If education is burdened too
heavily with copyright restrictions, teaching is inhibited and scholarship is
discouraged to the disadvantage of the public interest in general and the
publishing industry in particular."
The publishers in the UK have
claimed that the decision could threaten academic textbook publishing. The CEO
of the Publishers Association, Graham Taylor said: "Not everyone has thought
this through. There may be implications nobody wants and it will be harder to
resolve this after the decision."
But Professor Picciotto of
Universities UKcountered by saying that: "It wasn't our aim to damage academic
publishing, but those representing the publishers took a short-term,
restrictive view that was damaging education."
The new licence will run
for five years.
>[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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