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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
2003
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[1] About this Publication
[2] Sweden's EUCD Proposal
released
[3] KaZaa: Free to Fee?
[4] P2P Lobby Conceived
[5] Open
Source Mandate in South Australia
[6] Indigenous Moral Rights Bill
[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.
[1]Sweden's EUCD
Proposal released
Sweden has introduced into Parliament, proposed
legislation implementing the European Union Copyright Directive (ECUD). The
Swedish proposal follows the Directive but goes further than required in making
it illegal to download copyrighted material from P2P networks. The represents a
departure from past practice in Sweden (and for other some countries within the
EU), where distributing copyrighted material, such as sharing the material via
P2P networks is illegal, but downloading material is not prohibited.
The other highly debated issue- the use of circumvention devices as
prescribed by the proposal, closely follows the Directive. Like the Directive,
the proposal would make it illegal to distribute, sell and advertise all tools
(whether built by programming or by mechanical means) without specifically make
it illegal to use such circumvention devices.
However, the most
controversial component of the proposal is the introduction of a levy on blank
digital media to compensate copyright owners for lost revenue. The proposed
rate for the media levy would add a sizable €3.4 to each blank DVD-RW or
DVD+RW disc despite its relatively high current retail price and the proposed
levy for recordable discs (whether a CD-R or DVD-R or other digital medium) is
set at SEK0.0025 per megabyte and SEK0.007 for re-recordable discs (such as
DVD-RW, CD-RW or DVD+RW).
The proposal is causing alarm among users in
Sweden whose experience of being subject to "heightened" EUCD regime is
parallel to those in other EUCD countries in the process of introducing or that
have recently introduced legislation implementing the EUCD (for example Germany
who have recently intoduced a DMCA-like legislation to implement the EUCD and
WIPO internet treaties). The introduction of the Swedish legislation has come
six months after the official "deadline" for implementation of the Directive
(December 2002). Although all EU countries missed the deadline, EUCD
legislation is now active in handful of EU member countries such as Greece,
Germany and Denmark.
If the proposed law passes in Sweden's parliament,
it will be implemented as a law by end of the year.
The proposal is
available from the EC website (but only in Swedish)
[3] KAZAA: Free
to Fee?
Kazaa, the infamous file sharing program, currently in court
actions with major film and recording companies is shifting its focus and vying
to be the official online distributor for the entertainment industry.
Already, through a California-based partner, Altnet Inc., Kazaa offers
thousands of digitally protected music and game. However, unlike the millions
of song, videos and software programs that users load onto their computers and
make available for others to share, these files require a royalty fee from the
user for downloading and, if the user wants to share the file, forces the next
person who wants to get it to also pay the fee.
The success of the
Altnet systems is yet to be tested but commentators forecast that the move to
fee-based exchange of material will be slow given the millions of free files
that are currently available on the Kazaa networks. Kazaa is making way towards
putting more and more titles on its digitally protected service so that
eventually, unprotected files will be crowded out. KaZaa has further encouraged
the move; when users search for a particular title or artist, Kazaa produces a
list with priority given to protected, for-pay files, which are marked with an
icon.
Many experts believe that entertainment companies would be
naïve to hold tight to their demands that peer-to-peer networks be shut
down to prevent sharing of all copyrighted works. So far, the music and video
industries have taken only halting, initial steps to distribute their products
online but the notion that P2P is here to stay is slowly sinking in; IT giant
Apple Computer recently launched a service called iTunes that makes
industry-sanctioned music files available for 99 cents each.
Despite
the blistering anti-sharing publicity campaigns and the myriad of the legal
actions by entertainment companies against file sharing technology providers,
file sharing is increasing. The campaigns aimed at undermining confidence in
file sharing systems have so far only been mildly successful and the legal and
cultural battles continue. The attack on file sharing has raked up all manner
of conceivable alarm, ranging from allegations of child porn trafficking to
scare tales about errors that would expose personal information and rumours
about the prevalence of "spyware" on P2P systems.
[4] P2P Lobby
Conceived
Wearing of the onslaught of publicity stunts by the major
entertainment companies and their lobbying groups. Proprietors of free online
music and file-sharing services will be launching a formal lobbying campaign to
convince US Congress of their legitimacy.
Grokster will join with
several other services in a trade association to defend the rights of free
"peer-to-peer" file traders. The group will emphasise the integrity of
copyright law, maintaining that while copyright owners need to be paid, user's
rights established by copyright law should not abused or diminished.
The new coalition, which plans to launch in the next month or so will be formed
with the primary aim of dispelling the belief that online file sharing
necessarily constitutes "piracy " (to use a term coined by the entertainment
companies). The move is to counter the problem of massive marketing of
(mis)information to US legislators on the issue of file sharing as propounded
by the major entertainment companies.
The groups representing the
biggest film studios and recording companies, such as the MPAA and RIAA have,
through incessant lobbying, established into policy dialogue, a belief that
recent decrease in their revenues have been due to "piracy" activities taking
place, primarily on P2P networks. The new coalition will work to deconstruct
that myth and highlight that file sharing has many legitimate uses. The
coalition will also set out to send the message that technology enabling the
sharing of information quickly and efficiently over long distances should be
embraced, explored and incorporated into the current (unsustainable)
entertainment industry model.
[5]Open Source Mandate in South
Australia
The State Supply (procurement of Software) Amendment
Bill, a bill that calls on South Australian public authorities to use open
source in preference to proprietary software has been proposed by the
Democrats.
While neither the government nor the opposition has yet
formulated a position on the bill, the Democrats are confident the legislation
will pass. In order to become law, the bill has still to go through committee
(where it could be amended if needed) before being formally submitted to
parliament. The balance of power in both houses are held by the minor parties
and proponents of the bill are urging MPs to consider the bill on pragmatic
assessments, contending that government use of open source could deliver a
much-needed boost to the state's software industry. Big IT corporations have
been lobbying hard against the bill, with IT industry lobbying group,
Initiative for Software Choice(ISC) (run by the Microsoft-backed Computing
Technology Industry Association), writing to SA MPs urging them to vote against
the proposal. The letter condemns the bill and warns MPs that passing the bill
would "severely limit software choice for South Australia's government, harming
not only its citizens, but also South Australia's vibrant information and
communications technology industry".
The claims made by the ISC are
dubious; the bill does not limit the choices but simply states that where there
are two options serving the same function, government agencies will give the
open source option preference (due to the added advantages that open source
software offers such as full disclosure of source codes). No further details
have been given to support the claim that the bill could "harm" South
Australian citizens, it is difficult to see how the bill could have that
effect.
The damage to South Australia's information and communications
technology industry is similarly, a farfetched notion. In respect of jobs
generated by proprietary software, the majority of SA jobs in the sector are
technical in nature. It is true that providing support for proprietary software
produced by transnational software companies constitutes a significant number
of jobs in the sector but the adoption of open source would not have any net
effect in that respect. In fact, under proprietary software licenses,
technicians are not the position of fixing errors or "bugs" because they are
prevented from accessing the source code, in contrast, use of open source
software would create more technically qualified employment and set a
foundation for an industry framework that allows the IT industry to grow
through sharing of knowledge. Adopting this model would create more
sophisticated end products and increase technical skills to the benefit of the
industry, organizations, citizens and consumers.
The IT lobby groups
are also arguing against 'preference' legislation, saying instead that the best
policy is to leave it to the market to decide which software serves best. While
this is may hold true in the private sector, the Australian Government (as all
governments in democratic systems around the world) are entrusted with
information and material that is not owned by the government but by the
citizens. The proposal to use open source software is a policy that is aligned
with the nature of the responsibility; open source facilitates transparency of
process while the conditions of current proprietary software licences raises
serious doubts about the continued integrity and accessibility of information.
ISC has also been protesting to US trade officials responsible for
trade negotiations in the Australia- US free trade agreement. The US trade
representative has since taken up the issue with US congress with a letter from
chief US trade negotiator Robert Zoellick, stating that procurement rules
needed to be transparent and fair for US firms.
Over 70 pieces of
legislation or policy proposals for government preference for open-source
preferences have been monitored and opposed by the ISC over the last 16 months.
The proposal are concentrated and strongest in Europe and South America.
The SA bill is likely to come up before the SA Legislative Council
early to mid July before Parliament adjourns.
[6] Indigenous Moral
Rights bill
A Copyright Amendment (Indigenous Communal Moral
Rights) Bill will be introduced into Parliament later this year to give
Indigenous communities legal standing to safeguard the integrity of creative
works embodying traditional community knowledge and wisdom.
Drafting of the
bill has begun; under the proposal, Indigenous communities will be able to take
legal action to protect against inappropriate, derogatory or culturally
insensitive use of copyright material in regard to which an agreement exists
between the creator and the community.
The existing moral rights
provisions of the Copyright Act give all individual authors the right to be
identified as the author or artist of their work and to take action to prevent
false attribution of the author or derogatory treatment of these copyright
works and films. Moral rights are not however extended to Indigenous
communities.
The new legislation will introduce Indigenous communal
moral rights in relation to a work (including an artistic work) or film based
on an agreement between the author/artist and the Indigenous community. The
proposed rights will be independently exercised by the community and would
mirror the nature and scope of authors' moral rights as far as possible. The
proposal is aimed at providing certainty and assisting users and purchasers of
items to identify those works and films to which the rights attach, and will
facilitate cooperation and respect between artists, authors, film-makers and
Indigenous communities. The legislation comes amid growing international
interest in Australia's rich heritage of Indigenous art and culture.
[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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