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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 Australian intellectual property and the public interest, published by the
Australian Digital Alliance.
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March
2001
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[1] About this publication
[2] Digital Agenda Act commences: forward an
email, go directly to jail
[3] Digital Agenda Act commences: first salvo
over 'circumvention devices'
[4] Digital Agenda Act commences: ADA comment
[5] Copyright and Distance Education: US Ruling
[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/ipwmar01.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] Digital Agenda Act
commences: Forward an Email, Go Directly to Jail
Immediately after
the Copyright Amendment (Digital Agenda) Act 2000's commencement on 4
March 2001, the Daily Telegraph came out with its vision of a bold new
copyright future. The article 'Sharing e-mail banned by law' (at
http://www.news.com.au/common/story_page/0,4057,1768268%255E421,00.html)
gave the view that forwarding an email, even to family or friends, 'without
permission from the sender is illegal from today and could result in severe
penalties. New laws set out maximum penalties of five years' jail or fines of
$60,000.' The article further opined that some 5 million emails are forwarded
everyday in Australia which is probably correct. Obviously, this represents an
enormous potential for liability.
The Attorney-General, Mr Daryl
Williams rushed to soothe alarmed readers (at
http://www.law.gov.au/aghome/agnews/2001newsag/931_01.htm).
'Amendments to the Copyright Act that came into effect today do not outlaw the
practice of forwarding personal e-mails to other people. That would be
ridiculous.' He said.
While Mr Williams was right in that people are
extremely unlikely to be sued for forwarding an email, unfortunately his
reasoning was suspect. He claimed that 'a casual exchange of personal
information or office gossip' would not be 'original' enough to be protected by
copyright. Of course, in Australian law, the threshold of originality is very
low; 'originality' does not mean 'novelty, uniqueness or inventiveness'. It
basically means 'not copied from elsewhere.' There is no reason why copyright
will not subsist in an email containing office gossip.
The main reasons
that individuals are not sued for the forwarding email are (1) that it is
simply not worthwhile to sue over such a relatively trivial matter and (2) it
may be argued that the forwarding of emails is impliedly licensed. However,
this does mean that many Australians (as well people in other jurisdictions)
may well infringe copyright on a daily basis…
>[3] Digital
Agenda Act commences: First salvo over 'circumvention devices'
As
midnight on 3 March 2001 rolled around, a number of interests around the
country were anxiously awaiting the Act's commencement. One of the first off
the mark was Sony (as reported in 'Clock-ticking for Clock-chippers' at
http://australianit.news.com.au/common/storyPage/0,3811,1764783%5E442,00.htm)
Sony sent 'cease-and-desists' letters to Play Station 'console chippers'
(people who install modified chips in their game systems to make back-up copies
of legitimately purchased games; play imported (legitimate) games or to play
pirate games).
Sony claimed that, as of 4 March, it was ' criminal to
sell, distribute, manufacture or install a chip' Mr Ephraim said. This is
despite the fact that the law does not outlaw the use of a circumvention device
(unless the use is part of service to circumvent copyright protection for a
third-party). It also ignores the entirely legitimate reasons that people might
have to chip Play Station consoles.
Opinions differed on whether the
new laws would allow 'legitimate chipping' or not. Several readers of the
Australian were 'outraged' at the news of Sony's action. One reader claimed
that he only ever played off back-up copies of his games. 'I've had too many
CDs ruined and I'm upset that Sony is going to make me put my original CDs at
risk. The only way these will get replaced is by buying a new copy of the game
- why should I pay twice?'
A representative of Sony claimed that such
back-up copying was a smokescreen for piracy. He said that back-up copying of
business software was legitimate but that back-up copying of games was not.
"There's no need. It's a CD and you don't want to use it as a frisbee or a
drink coaster, but it's fairly robust." He said. This of course begs the
question that if a CD is 'robust' and does not need to be backed-up why is
backing up a legitimate practice with respect to business software? Are
businesses in the habit of using CDs as frisbees and coasters?
>[4] Digital Agenda Act commences: ADA comment
An
article in the Australian ('Alliance warns on copyright perils' at
http://australianit.news.com.au/common/storyPage/0,3811,1857223%5E1286,00.html)
reported the views of the Australian Digital Alliance as it heads towards it
Annual General Meeting on 10 April.
While the ADA was an early
supporter of the Digital Agenda Act (based in part on the Government's
rejection of a 'nightmare scenario' for copyright as proposed by some
rightsholder groups), it has some misgivings about aspects of the Act. In
particular, the ADA took aim at the fact that temporary reproductions are
covered by the owners right of reproduction. (Temporary copies are copies of
material that are inevitably made while using technology, such as copies of a
computer program contained in Random Access Memory when the program is
executing). Because the exception contained in the Digital Agenda Act, only
covers temporary copies made as part of a communication, many temporary copies
will need to be licensed. The effect of this is that reading electronic
material from a local source (such as from a CD-ROM or a hard drive) will be a
licensable activity.
>[5] Copyright and Distance Education: US
Ruling
March saw the introduction of a bill into the US Senate to
update the distance education provisions of their Copyright Act to account for
advancements in Digital transmission technologies that support distance
learning. The bill, S. 487, the latest in the US tradition of finding cute
names for legislation, is called the "Technology Education and Copyright
Harmonization Act"(the "TEACH Act").
The Digital Millennium Copyright
Act (DMCA) of 1998 (which is the US equivalent of our Digital Agenda Act)
required the US Copyright Office to report back on the need to revise copyright
law with respect to distance education. Consequently, the Copyright Office (a
branch of the Library of Congress) released a report with the catchy title of
"Report on Copyright and Digital Distance Education," in May 1999. The report
recommended updating the current copyright law exemptions for distance
education, but with safeguards to respond to copyright owner concerns.
The new bill, introduced by Senators Hatch and Leahy, closely tracks the
recommendations of this Copyright Office report. The Bill was also backed by
the American Library Association, which welcomed the Bill as 'comprehensive and
well-balanced'. More information on this Bill can be found at
http://www.ala.org/washoff/disted.html
>[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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