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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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July
2003
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[1] About this Publication
[2] Sony v Universities; an
update
[3] TV Distribution rights: its a family affair
[4] Google and the
Caching maze
[5] Deep Linking Win in German Courts
[6] Kelly v Arriba:
thumbnail images
[7] 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]
Sony et al v Universities: an update
The action taken by Sony and other
recording companies (see Feb IP wrap) against
universities for alleged copyright infringement conducted on university
networks trundles along its painful path. Proceedings in the Federal court in
the past few months have been concerned with interlocutory action relating to
the discovery process for access to and inspection of records retained by the
universities. The Federal court handed down decisions relating to the discovery
application, on May 30 (preliminary with orders allowing further submissions by
the parties) and July 18.
The decisions are very important first
indications in defining how far the duties of carrier service providers lie.
The application for access to university data pits procedures of the court
(formulated before the digital information became widely used), against the
possibilities and limitations of new technology in the administrative and
operational structures of institutions. The results have been uninspiring but
not wholly unanticipated; the approach of the court has been conservative,
focusing on the need to empower the court rather than on issues of privacy and
ensuing responsibilities as raised by the universities.
Both judgments
take a broad interpretation of the discovery provisions allowing for a forensic
search of any material "related to copyright infringement" (rather than
requirement that it be direct infringement). The decisions also dismiss the
universities' contention that the measure of access requested by the recording
companies is overly invasive, given the fact that much of the material thus
searchable has nothing to do with the cause of action. The court rejected the
universities' narrower reading of the court rule that the term "document"
referred to in the rules should be confined to particular "units" of
information eg emails rather than whole drives of archived data. Instead, the
judgments direct access to information relating to the alleged infringers with
no concessions for the fact that the search simultaneously allows access to a
vast amount of other unrelated information (unavoidable, because of the way
that the data is stored) in the process of getting information on the
individuals involved. The court did allow for a couple of requests made by the
universities regarding access to forensic searcher but only on a weakened
basis- university representatives can be present during the search but searcher
will not answerable to university on issues of process etc.
The Federal
court does not seem to give any real consideration as to how its decisions will
affect institutional operations. However the court admits a lack of knowledge
about how consuming the discovery process will be for the institutions involved
(even to this one situation) deferring the question of costs of the discovery
process until after it has been carried out.
The decision of
May
30 and
July
18 can be found at Austlii.
[3] TV Distribution rights: it's a
family affair
The development of a "TV Brick" by a French company
(Nexedi SARL ), a TV set-top box which effectively allows users to use a
digital subscriber line (via the internet) to receive broadcasts from another
country where a tandem box is similarly connected to the TV and phone line, is
set to agitate local industries.
While so far the box has only been
made available for expatriate families wishing to access broadcasts between
Paris and Tokyo, the company has other European nations in sight for the near
future. Nexedi argues that the system is on the right side of the law in Japan
and Western Europe, maintaining that circulation of copyrighted materials by
any method, as long as it stays within a circle of family members and is for
non-commercial use, is legal within those regions.
However, the box
will be certain to incite legal challenge from content providers in both Tokyo
and Paris. Typically the distribution agreements in for television content are
negotiated across countries and also on a differentiation of media platforms.
The rise of technology like the "TV brick" crosses traditional ways of cutting
the copyright pie by mixing platforms and converging on legally segregated
geographical areas. The rise of digital- born audio visual content and the
growing number of media platforms and technology such as the TV brick will
agitate established practices in the broadcasting industry in much the same way
as the music industry has been agitated by the rise of MP3s and P2P technology.
[4] Google and the caching maze
While many businesses
spend much time and money trying to get in a "Google" search, some are looking
into the issue of how to get off the Google "hits" list. Caching
features on search engines such as Google have come under the scrutiny of net
publishers who are considering options to take in respect of temporaries copies
created and retained by search engines .
Caches from Google have served
as a default temporary archive for material that is no longer accessible at the
original source (for whatever reason). The feature has recently been putting
Google at odds with some unhappy net publishers although legal discussion has
not turned litigious. Google's caching feature in effect makes copies of all
the web sites the engine indexes without asking permission from copyright
holders, a function which strictly speaking, infringes on copyright. In fact
most search engines make a statistical record of a web page when the engine
performs its scan in carrying out a query or search. Typically the scan finds
specific information contained on a page that's related to a search term,
without indexing a complete picture of the page. Google's caching feature is
more comprehensive however, and takes a digital picture of pages, making it
available to visitors in cached links. Those pictures exist temporarily on its
site until the next time Google crawls that particular page. To Google's credit
however, it offers options for publishers to "opt-out" of the temporary archive
function and (luckily) links to caches are only occasionally used by websurfers
(no doubt the issue would have been raised much earlier otherwise). The
temporary archive maintained by Google has had varied receptions; while daily
news services are concerned that the archive will hold outdated (or inaccurate)
information, the archive has also been touted a resource for patent searches
and educational tool for students in website development. The popularity of
Google and its market clout however works against the company in this case.
"Caching" covers the a variety of temporary copies of a web page on the net; a
routine practice for most internet users whether or not they are aware of it.
In fact, all forms of caching involve making a reproduction of a work but not
all of these activities will necessarily be an infringement of copyright.
The practice of caching has been around for as long as the internet and
its uncertain legality has been an issue that most people have been happy to
ignore for an equally amount of time. While the legal treatment of caching for
commercial facilitators will be different to the legal allowances for the
practice by individual, no doubt one end of the spectrum will affect the other.
The issue is also on the agenda in the current review of the Digital Agenda
Act. The current provisions create exceptions for temporary copies of material
made "in the course of communication" but gives no further guidance for the
spectrum of caching that is currently possible. Arguments for remunerating
creators for these sorts of reproductions needs to be balanced against the need
for copyright law to facilitate the flow of information and in the conclusions
reached by the review, we will see how the law chooses to deal with technology
which far outruns its own slow evolving mechanisms.
[5] Deep Linking
Win in German Courts
The practice of deep linking has been granted
legitimacy by German courts. The Germany Federal Court of Justice (the
country's highest court) ruled on July 18, that Paperboy, an online search
engine, neither violated copyright nor competition law by its routine deep
linking.
The action was taken by newspaper company Verlagsruppe
Holtzbrinck against Paperboy for deep linking to their articles. The company
argued in the court that deep linking activity was illegal on the basis that
such links take users directly to news articles, bypassing introductory pages
and advertising, thus depriving the plaintiffs of revenue from their
advertisements.
The arguments heard in court centred more on the
considerations of net behaviour and the competition aspects of the activity,
and did not address the more complicated copyright questions.
According
to the court, the public interest in a having an efficient and capable Internet
takes precedence over the commercial interests of the newspaper company, even
if the advertising of the company is bypassed. The court clarified that users
can access any page if they know the URL, and deep linking is just a technical
simplification for entering the URL manually.
More and more it seems
that courts around the world are formally recognising the dangers of
undermining the efficiency of the internet but it seems policy decisions such
as this still struggles to fit in with established copyright law. Although this
decision is encouraging, Germany's copyright law, in common with other EC
member countries, is in the midst of change, so the deep-linking argument could
be resurrected in a later date.
While, the evaluation of the
technological significance of the deep linking weighed in favour of the
defendant in this particular case, courts around the world have left it to
market players to lock away what they don't wish to be linked. Many publishers
have taken this up and are already moving to curtail or block permanent deep
links, as more free content moves behind registration screens or is whisked
away from sight after a short period to pay-to-access archives.
[6]
Kelly v Arriba: thumbnail images
The German deep-linking case
coincides with a decision in the American courts of Kelly v Arriba, over use of
thumbnails images by another search engine, Arriba (now Ditto.com). Kelly, a
photographer, after discovering thumbnails images of his work sued but lost in
the US district court which found that the use of thumbnails was a fair use and
did not infringed his copyright of the original photographs. Kelly appealed the
decision.
At issue were two separate considerations; the use of the
thumbnails and second, the enlargement of the thumbnails to full sized
photographs. Arriba's search engine has the unusual function of displaying its
search results as thumbnail images rather than text. When Arriba carries out a
search the program in effect "crawls" through sites looking for images to
index. The crawler downloads full-sized copies of the images onto Arriba's
server which are then reduced to a smaller, lower resolution thumbnails of the
images. Once the thumbnails are created, the program deletes the full-sized
originals from the server and creates a page whereby the user may click on the
link next to the thumbnail. Although a user could copy the thumbnail by
clicking on the image, the attempt to enlarge them would result in a further
loss of picture quality.
In coming to the decision the Appeals Court
considered four fair use "factors" in the US law noting that the factors were
to be assessed in the light of the objectives of copyright law "rather than
view them as definitive or determinative tests". In respect of the purpose and
character of the use, the court found that Arriba's use of Kelly's photographs
were essentially transformative and that Arriba's use of the images serves a
different function than Kelly's use ie improving access to information on the
internet rather than artistic expression. Secondly, in considering the nature
of the copyrighted work the court found this element only slightly in favour of
Kelly given that his images had been already accessible on the internet before
Arriba's use. Thirdly, in respect of the amount and substantially of the
portion used, the court maintained that although Arriba had copied the whole of
the work, it was reasonable to do so in light of Arriba's use of images. On the
fourth factor of effect on the owner's market, the court concluded that
Arriba's creation and use of thumbnails did not harm the market for or value of
the photographs. The court thus held that on consideration of all the factors,
Arriba's use of thumbnails was therefore fair use of the photographs and
affirmed the primary judge's ruling. On the second issue of whether the making
of copies which could be enlarged infringed copyright, the appeals court
reversed the district court's ruling on infringement it considered the first
court had overstepped its role as the parties did not request a ruling on the
issue in the first instance.
The decision can be found
here
.
[7] 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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