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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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June 2001
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[1]
About this publication
[2] CLRC releases Copyright v Contract issues paper
[3] Refusing to be silenced: digital copyright laws and encryption research
[4] Freelance writers win in Tasini v New York Times
[5] Canadian
Government to modernise copyright legislation
[6] Your laws are my laws: the
latest on the Hague Convention
[7] Distance education amendments in the US
[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/ipwjun01.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] CLRC releases
Copyright v Contract issues paper
Last month, the Wrap-up wrote
about the new CLRC reference looking at the intersection between copyright and
contract.
On 15 June, the CLRC released its Issues Paper to guide the
public consultation process. The Paper can be found here:
http://www.law.gov.au/clrc/pres_ref/IssuesPaperJune2001.pdf
The CLRC is seeking input on a number of specific points but first
and foremost it needs evidence that licence agreements that attempt to override
exceptions exist. If you have a licence agreement, either for business or
consumer purposes, that does purport to modify rights provided for under the
Copyright Act, you might like to make a submission to the CLRC to this effect.
Alternatively, you could send a copy to me (nsmith@nla.gov.au).
Incidentally,
the Issues Paper is a good read for anyone trying to get a handle on the new
copyright laws. The Paper contains good succinct summaries of the copyright law
including the new Digital Agenda Act.
>[3] Refusing to be
silenced: digital copyright laws and encryption research
Professor
Ed Felten, a Computer Science Researcher at Princeton University, was amongst a
team of scientists who responded to a challenge to attempt to crack SDMI, the
Secure Digital Music Initiative. SDMI was an attempt a standard encrypted
format for digital music that might save the recording industry from Napster.
Felten and his team succeeded. However, when they tried to publish
their findings, an integral part of the scientific process, they received a
nasty letter from SDMI Foundation (a copy of the letter can be found here:
http://www.politechbot.com/p-01946.html) 'urging' that Felten not publish
the material and further that it should be 'destroyed'. The letter stated that
any attempt to publish the SDMI vulnerabilities would be a violation of the US
Digital Millennium Copyright Act (similar to Australia's Digital Agenda Act).
Felten and many others decried the chilling effect such a threat had
upon academic free and free expression generally. His response was, backed by
the Electronic Freedom Foundation, to sue SDMI, its backer the Recording
Industry Association of America and the US Department of Justice seeking a
declaratory judgement that attempts to publish SDMI security research are not
illegal and further that DMCA (or at least the part of it that has plagued
Felten) is an unconstitutional restriction on free speech.
The
Recording Industry has since claimed that it was never going to sue Felten. It
is argued that this claim is to undermine Felten's suit: if he was not
threatened by a RIAA suit then he may not be able to obtain a declaratory
judgement protecting him from liability and thus challenge the DMCA itself.
This is thought to be the first legal challenge to the
constitutionality of the DMCA. As the EFF says: 'Freedom of Speech should not
be sacrificed in the recording industry's war to restrict the public from
making copies of digital music.' This lawsuit looks to be extremely
interesting. Commentators have noted that anti-DMCA forces could not have found
a better plaintiff to carry the fight. A respected Princeton professor asked to
destroy his important research findings cannot be dismissed as just another
cyber-libertarian crank…
Further information about the case can be
found here: http://www.eff.org/Legal/Cases/Felten_v_RIAA/
>[4] Freelance writers win in Tasini v New York Times
The US Supreme Court handed down its decision in the case of Tasini
v New York Times, a case brought by Jonathan Tasini, president of the National
Writers Union, together with a number of other free-lance authors.
The
Court held that The New York Times and other publishers had committed copyright
infringement when they resold freelance newspaper and magazine articles, via
electronic databases such as LexisNexis, without asking permission or making
additional payments to the original authors.
The copyright law entitles
publishers to control 'revisions' of the publication in which the free-lancers'
work appeared. They argued that permanent text-searchable, online electronic
databases are a 'revision' of a newspaper. Acceptance of this view would have
enabled them to control this enormously valuable use without seeking permission
or making any payment to the authors.
The publishers further contended
that if the authors won control over their works, 100 000 articles would have
to be deleted from various databases. This was explicitly rejected by the Court
and by the authors who said they merely wanted their share of revenues. This
idea that the historical record would suffer was also rejected by the American
Library Association which supported the authors.
A statement from the
libraries supporting the decision is here:
http://www.arl.org/info/frn/copy/tasinipr.html
and further information on the case can be found here:
http://www.nwu.org/tvt/vichome.htm
>[5] Canadian Government to modernise copyright legislation
The Canadian Government recently announced that it will update its
copyright legislation in light of the 'fast-changing digital environment'. The
Government published A Framework for Copyright Reform and suggested that this
'marks the beginning of a process that will be ongoing over the years to come.'
(If Canadian digital copyright reform is anything like its Australian
equivalent then they're not kidding…).
As the first step in this
reform process the Canadian Government also released two snappily-titled
discussion papers: Consultation Paper on Digital Copyright Issues and
Consultation Paper on the Application of the Copyright Act's Compulsory
Retransmission Licence to the Internet.
Input is sought on how to
modernize Canadian copyright legislation in accordance with the WIPO Internet
Treaties (which Canada has signed but not yet complied with; by way of
contrast, Australia is largely in compliance with these Treaties but has not
yet signed them). The discussion papers can be found here:
http://strategis.ic.gc.ca/SSG/rp01100e.html
Canadians have until 15 September to respond.
>[6]
Your laws are my laws: the latest on the Hague Convention
As
previously reported in the Wrap-up, work is proceeding on the Convention on
Jurisdiction and Foreign Judgments in Civil and Commercial Matters. This
proposed Convention comes under the umbrella of the Hague Conference on Private
International Law which has existed for a number of years now making
international treaties on relatively narrow issues such as taking of evidence
abroad, the form of testamentary depositions, wills and traffic accidents.
The low profile of this body is changing fast with the proposed
Convention on Jurisdiction. As Jamie Love of the Consumer Project on Technology
points out, the Hague approach to the harmonisation of international commercial
and civil law is opposite to that normally taken.
'It does not impose
global rules on substantive laws -- countries are free to enact very different
national laws on commercial matters. The only treaty obligation is that member
countries follows rules on jurisdiction and agree to enforce foreign judgments.
Rather than a WTO or WIPO type approach of harmonization of substantive
policies, every country can march to its own drummer. The treaty is about
enforcing everyone's laws, regardless of their content, and enforcing private
contracts on which national courts will resolve disputes.'
The danger
here is that the Internet crosses all boundaries; material posted on a website
in Australia may offend the laws of another country. A website may constitute
blasphemy in Egypt or defamation in a country with particularly strong
defamation laws. In this way, Australians who use the Internet may effectively
become subject to the laws of all other countries.
There is a
particular danger here for intellectual property. Material on an Australian
website may be in the public domain here but still protected by copyright in
the EU; or it may be justified by an exception here but not in France, for
example.
This proposed Convention has potentially far reaching effects
and yet has been subject to little public consultation around the world. To its
credit, the Australian Government has been one of the very few to engage in
formal consultation on this issue. The Australian issues paper on the Hague
Convention can be found here:
http://law.gov.au/publications/hagueissues3.html
The Convention has not yet been finalised. There is still an
opportunity for citizens to lobby their Governments to ensure that this
Convention does not place an impossible burden upon Internet users or consumers
generally.
More information can be found here:
http://www.cptech.org/ecom/jurisdiction/hague.html
>[7] Distance education amendments in the US
8
June saw the passage of a Bill in the US Senate to extend copyright exceptions
enjoyed by traditional educational institutions to nonprofit distance-education
courses. The Technology, Education, and Copyright Harmonization Act (Americans
call their Bills Act even before they have actually been enacted) is also known
as the TEACH Act.
According to Senator Leahy, one of the Bill's authors
as reported by the Chronicle of Higher Education, the act 'reflects our
understanding that we must be able to use new technologies to advance our
education goals in a manner that recognizes and protects copyrighted works.'
The Bill still has to gain the approval of the House of Representatives
and the President. The Text can be found here:
http://thomas.loc.gov/cgi-bin/query/z?c107:S.487:
>[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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