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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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March
2003
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[1] About this publication
[2] Parallel Importation Bill Passed
[3] Anti- Spam Initiatives
[4] EC enforcement directive
[5] Digital
Agenda Review Commences
[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/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] Parallel
Importation Bill Passed
The Copyright Amendment (Parallel
Importation) Bill 2002 was passed in the Senate on March 27 with amendments
and will commence on Royal Assent as the Copyright Amendment (Parallel
Importation) Act 2003.
The amendments removed Schedule 2 of the
Bill which was related to printed books, periodicals and music, and added a new
Schedule 4 that included a range of provisions relating the enforcement of
copyright.
The current act allows parallel importation of sound
recordings (following amendments to the Copyright Act in 1998). On assent, the
Parallel Importation Act will allow parallel importation of computer programs
including CD-roms and computer games and sheet music in electronic form. The
amended legislation will specifically exclude from parallel importation films
that are made for direct distribution and mandate a review of the enforcement
provisions after 4 years.
The Act will place onus on importers to prove
the legitimacy of their imports and the amendments include increased penalties
for illegal importation.
The Hansard notes on the Senate debate is
available Parliament House Hansard (March
27 2003- the debate starts at p 9921 to 9927, resumes at 9939 - 9944, resumes
again at p9973, and concludes at p9979).
The Copyright Amendment
(Parallel Importation) Bill 2002 can be found at
scaleplus.
[3] Anti-Spam
Initiatives
The proliferation of "spam", unsolicited bulk advertising
through email, has in the past few years, risen to levels which choke the
networks and is a daily nuisance for internet users. Attempts to tackle the
problem have been initiated around the world but finding a workable solution is
proving difficult.
The United Kingdom's Department of Trade and
Industry opened consultation into the implementation of the European Union
(E.U.) Electronic Communication Data Protection and Privacy Directive (which
comes into force at the end of October) to discuss the creation of anti-spam
laws.
The U.K. anti-spam proposal will incorporate the E.U.'s opt-in
principle, technically banning spam by requiring that companies obtain
consumers' permission before sending them marketing material via the internet.
Failure to secure consent under the new proposal, would result in severe fines.
Other provisions will grant the government's Information Commissioner powers to
investigate organisations or individuals it believes are using spam and
consumers under the new law can file for damages. The new laws also covers
"cookies" and will require that websites will have to provide information about
the cookies they want to send and offer consumers the opportunity to reject
them. The proposal will considerably restrict mass-marketing campaigns by
companies in the UK sent to both email accounts and mobile phones.
The
U.S. is also currently in the process of tightening its anti-spam legislation,
with several states adapting their laws to enable individuals to file suit
against "spammers". A Californian bill currently in legislative progress will,
if passed, allow internet users to sue e-mail marketing firms $500 for each
piece of unsolicited advertising spam. The Bill would also make it illegal to
sell lists of e-mail addresses to spammers.
The anti-spam bills in both
the US and the UK have received widespread opposition from the nation's
Internet establishment who argue that there is a place for unsolicited e-mail
in the marketplace. They argue that email technology is a valid business tool
for delivering fast and inexpensive advertising to specific and targeted
markets.
One of the primary difficulties in finding a solution for the
spam problem is that spam originates from all around the world; even if laws
are in place in a jurisdiction it will only be partly effective against the
tide of advertising email from outside the jurisdiction. Only international
laws can truly prevent spam but perhaps, more crucial to an effective solution
is the development of internet technology that will support law. The current
state of email technology cannot sustain routine identification of senders
within the short time frame that spammers operate. Spammers send millions of
messages in short burst through multiple servers they have compromised at
legitimate European and US companies from an originating server which is
constantly relocated. Typically, law enforcement lags way behind and the
originating servers are long gone by the time they have been
identified.
The text of the E-Privacy Directive 2002/58/EC Concerning
the Processing of Personal Data and the Protection of Privacy in the Electronic
Communications Sector, 2002 O.J. (L 201) 37 can be found through the
EU website.
The text of
the Californian Bill can be found
here (go to "Bills in
Progress" and search for "SB 12 electronic mail") .
Spamlaws.com is a useful site that provides
updated information on anti-spam legislation in progress and operation around
the world.
[4] EU Enforcement Directive under consideration
The Directive of the European Parliament and of the Council on
measures and procedures to ensure the enforcement of intellectual property
rights COM (2003)/46 ("Enforcement Directive") is awaiting consideration by the
European Parliament. The proposed Directive is to be applied across the board
to all IP areas (including geographical trademarks) and provides regulation for
border measures to ensure competence to handle piracy.
The proposal
aims at re-enforcing updating and harmonising civil and criminal sanctions (and
some administrative procedures) and is inspired by TRIPS (Agreement on Trade
Related aspects of Intellectual Property Rights- a WTO instrument). The current
draft of the Enforcement Directive goes much further than TRIPS and contains a
comprehensive list of remedies for copyright infringements. The "TRIPS-Plus"
aspects include measures giving more civil powers to courts particularly to
gather evidence, allowing copyright agencies to appear on behalf of copyright
owners, the right of recall to be granted by the court at the offender's
expense, seizure of bank accounts, allowance for interlocutory injunctions,
more powers available for producing evidence eg Anton Pillar order, more
detailed language of damages allowing for payment of double the amount of the
royalties or fees which would have been due, and a wide and growing scope of
criminal liabilities. Also, the Directive places a ban on infringer's access to
public assistance and public subsidies.
The proposal is the result of
heavy lobbying from the groups such as International Federation of the
Phonographic Industry, Motion Picture Association and Business Software
Alliance. The Directive is aimed at reducing the perceived rampant piracy of
copyrighted works but pro-Directive lobby groups consider the current draft
inadequate and continue to push for even tougher sanctions.
The
Commission's draft directive has to pass the European Parliament and the
European Union's Council of Ministers before it is officially adopted. Although
it is still early days, critics have speculated that the Directive is unlikely
to pass without amendments, not least the unreasonable "laundry list" approach
to the problem but also the fact that it is virtually impossible for some
members to implement some the provisions which may be unnecessary or
undesirable in the respective jurisdictions. Some commentators have raised
alarm at the unsatisfactory and negative effects the proposed Enforcement
Directive which, combined with the Copyright Directive will has create pockets
of EC law that are consequently incorporated in national systems but which fits
awkwardly into the member' different legal frameworks.
The text of the
enforcement directive can be found
here.
[5] Digital Agenda Review Commences
The terms of reference for
the mandated review of the Copyright (Digital Agenda) Amendment Act 2000 has
been released with Phillips Fox named as the external consultant who will
report to the Government on key aspects of the Digital Agenda reforms. The
Government has made it clear in previous Government literature that the review
will look at how the reforms have performed against its original objectives and
will not re-evaluate the objectives.
The report by Phillips Fox is
expected to be conducted over the next nine months and will form part of the
Government's broader review of the reforms. The terms of reference are
restricted to the most controversial areas and will cover issues such as the
library and archives exceptions, circumvention devices, ISP liability,
temporary copies, educational statutory licences and curiously, the "right of
first digitisation".
The ADA will be releasing a position paper on the
terms of reference shortly.
The full terms of reference can be found at
the Attorney General's website.
[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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