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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
2004
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[1] About this Publication
[2] Draft text of the Australia- United
States Free Trade Agreement released.
[3] Launch of Creative Commons-
Australia.
[4] EU Intellectual Property Rights Enforcement Directive
Passed
[5] The Panel case: Network Ten Pty Limited v TCN Channel Nine Pty
Limited
[6] CCH Canadian Ltd. v. Law Society of Upper
Canada
[7] 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]
Draft text of the Australia- United States Free Trade Agreement
released
On March 8 the text of the Australia- United States Free
Trade Agreement (AUSFTA) was publicly released. Chapter 17 of the agreement
contains provisions relating to copyright which will create obligations to make
changes to Australia's current copyright regime to significantly raise the
level of copyright protection. The draft text of the agreement is complex and
contains some ambiguities as to the level of protection that is required to
meet AUSFTA obligations. Generally the provisions widen and extend the scope of
protection but ambiguities in the text create a potential to interpret
implementation that may lessen the impact of the agreement (if it is
ratified).
The full text of the agreement is available from the
Department
of Foreign Affairs and Trade Website.
The changes required by
Chapter17 largely mirror the provisions already in place in the United States
Digital Millenium Copyright Act 1998 (DMCA). The provisions in the chapter are
typically expressed as broad obligations coupled with specific exceptions and a
statement that the list of exceptions is exclusive. The areas of regulation
that require most change are ISP liability, circumvention devices, enforcement
measures and copyright term extension as summarised below:
Article
17.1: General Provisions
The provisions in article17.1 relate to basic
entitlements of copyright, national treatment and commitment to accede to
international treaties. These provisions do not require significant legislative
change to meet them. Of note: " The provisions of the chapter will cover
existing works as at date of entry into force of the AUSFTA (art 17.1.9) " In
respect of copyright term extension, the provisions of the Chapter do not
require material already in the public domain at the date of entry into force
to be recalled back into copyright (art 17.1.10) Article 17.4: Obligations
pertaining to Copyright Temporary Copies (art 17.4.1(a)) The article provides
that authors shall have the right to authorise or prohibit all reproductions,
"in any manner or form, permanent or temporary (including temporary storage in
material form)". The article however contains a note which states that it will
be up to each party to prescribe the extension of copyright to works in
"material form". The provision may require Australian legislative change;
currently s 43A of the Copyright Act ("the Act") states that certain temporary
reproductions ie reproductions created as part of the technical process of
making or receiving a communication are not infringements.
In addition
art 17.11.29 sets out certain circumstances in which there are limited rights
to make temporary reproductions in relation to service providers.
Extension of Copyright Term (art 17.4.4)
The article extends
the term of copyright for all works to varying degrees depending on the
category of material. Where the term of copyright is calculated on the life of
the author, the term is extended from life +50yrs to life+ 70yrs. Otherwise,
where the work, performance or phonogram has been published, the term will be
70yrs from date of publication; where the work is not published within 50yrs
from creation of the work, the term will be 70 years from the end of the
calendar year of the creation of the work. No margin for flexible
interpretation exists in this provision.
Anti-circumvention devices
(art 17.4.7)
This article creates obligations that require extensive
change to our current regime (that bans trade and manufacture of circumvention
devices) to create a ban on the act of circumvention. The AUSFTA maintains the
ban on the trade and manufacture of circumvention devices but also, expands the
scope of the prohibition through its definition of "effective technological
measure". The definition includes devices or services that are marketed or
originally created for that purpose regardless of whether they serve any other
purpose or whether the devices are effective.
Article 17.6.7 (e) sets
out an exclusive list of permitted exceptions to the ban which if implemented
will significantly narrow the current range of "permitted purposes" under
Australian law. Current exceptions under s116A(3) of the Act which appear to be
eliminated by this provision include those created for the purposes of s49
(communication works by libraries and archives for users), s50 (communication
works by libraries and archives to other libraries and archives), s51A
(reproducing works for the purposes of preservation) and Part VB (communicating
works by educational institutions).
ISP liability (art 17.11.29)
This article contains a broad obligation to create "legal incentives"
for service providers to cooperate with copyright owners in deterring
unauthorised storage and transmission of copyrighted materials and also a very
specific and prescriptive approach to limitation of liability for service
providers. Art 17.11.29(b) sets out comprehensive measures for the limitation
of liability, in particular art 17.11.29 (b)(i) defines four functions for
which a limitation of liability is available; transmission of material without
modification of content, caching carried out as part of an "automatic process",
storage at the direction of a user of material "residing on a
system…operated by or for the service provider" and hyperlinking. It is
unclear how expansive these functions are intended to be; it is arguable on a
broad reading of the article that any provision of ICT facilities would bring a
person or organisation under the provision, on another reading of the article,
it is conceivable that the provision is intended to narrow the types of
entities that are able to limit liability in reliance on the provision. The
lack of detail in relation to underlying technical processes makes it difficult
to gauge the level of legislative change necessary to fulfil the obligations
created by the AUSFTA.
Art 17.11.29 (xi) and (x) provides for a
notification and counter-notification procedure, the form of which is outlined
in an accompanying side letter. The procedures outlined closely mirror that
already in place in the U.S. and exempts an ISP from liability where they
expeditiously remove the allegedly infringing material in good faith based on
receiving a notice from copyright owners.
Enforcement measures
(article 17.11)
The enforcement measures prescribed by AUSFTA
represents a substantial extension of and departure from current law. Art
17.11.4 provides for a presumption of copyright subsistence in the absence of
evidence to the contrary (currently under s126 of the Act, the presumption is
that copyright will subsist unless the defendant puts the issue in question).
Article 17.11.6 (a) encourages a party to effectively give a plaintiff
entitlement to the greater of damages and an account of profits (current law
excludes availability of damages from instances where the defendant didn't know
or ought not reasonably to have known that their acts were infringing). Article
17.11.6 (b) also requires a court to consider a submission from a copyright
holder (currently the court may elect to do so). Article 17.11.17 further
inflates the amount of damages available by creating an option for statutory
damages or additional damages in the event of a flagrant infringement (in a
manner that exceeds the current position at law).
Article 17.11.26 also
contains an expansive definition of "wilful copyright piracy on a commercial
scale" which in effect, will subject acts which are clearly not commercial in
nature to the provisions governing infringement and enforcement of infringing
acts done on a commercial scale.
[3] Launch of Creative Commons-
Australia.
The Creative Commons project aspires to enrich the
creative and intellectual environment by providing flexible modes of use and
distribution. The project reconceptualises traditional modes of use of
copyright material through a series of licenses which makes works available on
conditions such as attribution; non-commerical distribution; no derivative
works; verbatim copies; and share and share alike.
The Creative Commons
project is based at Stanford Law school but is an international initiative.
Queensland University of Technology (QUT) has become the Australian affiliate
for the licence with Australian adaptations of the creative commons licences
drafted by Blake Dawson Waldron .
The Australian creative commons
portal is here.
For information on creative commons licences go to
www.creativecommons.org
[4] EU Intellectual Property Rights
Enforcement Directive Passed
The European Parliament passed the
Intellectual Property Rights Enforcement Directive on March 9 in a vote of 330
to 151 (with 39 abstentions). The Directive was passed amidst significant
controversy focussed on the new invasive provisions in relation to rights
against individuals and the failure of the Directive to distinguish large-scale
commercial infringement (for which it was orginally drafted) and counterfeiting
enterprises from unintentional, non-commercial infringement by individuals.
The Directive introduces a number of enforcement remedies that are not
recognized in the national laws of many EU member states. These include "Anton
Piller" search-and-seizure orders, interlocutory injunctions and Mareva
injunctions to freeze bank accounts and obtain commercial documents. Such new
remedies as prescribed in the Directive have been criticised on account that
the lack of limits on their use to large-scale, commercial infringement and
counterfeiting (with appropriate judicial oversight) would impact negatively on
consumers' privacy, stifle technological innovation and place significant cost
burdens on ISPs.
The
text of the Directive
is available from the IP Justice website .
[5] The Panel case:
Network Ten Pty Limited v TCN Channel Nine Pty Limited
The
High Court has allowed the appeal by Network Ten against a decision of a Full
Court of the Federal Court in favour of rival broadcaster Channel Nine.
The case concerned the rebroadcasting by Network Ten, on its program
"The Panel", of excerpts from Channel Nine's broadcasts. Channel Nine sought an
injunction against further broadcasts of The Panel by Channel Ten, alleging
infringement of copyright. At first instance, Conti J held that Ten had not
taken the whole or a substantial part of any of Nine's broadcasts.
However, the Full Court of the Federal Court unanimously reversed the
decision, accepting Nine's view that each visual image capable of being
observed as a separate image on a television screen and accompanying sounds is
"a television broadcast" in which copyright subsists. Channel Ten then appealed
to the High Court, arguing that the term "a television broadcast" was misread
by the Full Court, with the result that the content of that expression is so
reduced that questions of substantiality have no practical operation and the
ambit of the copyright monopoly is expanded beyond the interests the
legislation seeks to protect.
In a 3:2 decision (McHugh ACJ, Gummow and
Hayne JJ; Kirby and Callinan JJ dissenting), the Court said that Ten's
submissions should be accepted and the appeal allowed. The decision supported
the limitation on the definition of "television broadcast" so that news
broadcast which include various segments, items or "stories" does not
necessarily render each of these "a television broadcast" in which copyright
subsists.
Decision can be found
here.
[6] CCH Canadian Ltd. v. Law Society of Upper
Canada
In a long-awaited decision, the Supreme Court of Canada
held that the Law Society of Upper Canada does not infringe the copyright of
certain legal publishers by operating a service that offers custom photocopying
of cases, articles, and other legal materials for the benefit of lawyers
conducting legal research.
In its decision, the Supreme Court has
clarified a number of important, principles of copyright law that entrenches
the rights of users in the interpretation of Canadian copyright law.
The decision includes the following significant rulings:
- The court maintained that to be original (a
key requirement for copyright protection), a work must originate from its
author, not be copied from another work; and be the product of an author's
exercise of skill and judgment of more than a trivial or mechanical nature. The
Court maintained that creativity is not required to make a work 'original'
although creative works will by definition be 'original' and covered by
copyright;
- The court has identified six specific
factors that will help to determine whether or not a dealing is "fair." These
include the purpose of the dealing, the character of the dealing, the amount of
the dealing, alternatives to the dealing, the nature of the source work, and
the effect of the dealing on the source work.
- The court ruled that the availability of a
licence is not relevant to the question of whether or not a particular dealing
is "fair." Since "fair dealing" is by definition not an infringement of
copyright, a user who plans to deal "fairly" with a protected work need not
seek a licence from the copyright owner.
- The court ruled that user rights should be
broadly interpreted. This has challenged previous cases where decisions have
suggested that, while the rights of copyright owners should be interpreted
broadly, the rights of users should be treated as exceptions to the general
rules and therefore interpreted more narrowly.
- The Court held that "authorization"
copyright infringement requires a certain degree of control over the infringer.
The Court also held that, where a person authorizes the use of equipment that
could be used to infringe copyright, it must be presumed (absent evidence to
the contrary) that this person has authorized the equipment to be used only in
accordance with the law.
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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