The ADA Monthly Intellectual Property Wrap-Up --------------------------------------------------------------------------------------- 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. -------------------------------------------------------------- May 2001 -------------------------------------------------------------- [1] About this publication [2] Senate Committee releases parallel imports report [3] New Copyright Law Review Committee reference: copyright v contract [4] Don't copy that floppy phonebook! FOCUS: Copyright and Free Expression [5] Will Gone With The Wind be 'enslaved'? [6] Miserable for a reason: moral rights and Victor Hugo [7] Software as free expression: new briefs in the DeCSS case [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/ipwmay01.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. There was no April Wrap-up as the editor was on leave. >[2] Senate Committee releases parallel imports report The Senate Committee on Legal and Constitutional Affairs released its report on the Government's Copyright Amendment (Parallel Importation) Bill 2001. This legislation would remove parallel importation restrictions for 'computer software products, including interactive computer games, books, periodical publications (such as journals and magazines) and sheet music.' Parallel importation is importation, without the permission of the local copyright licensee, of legitimate copyright products made with permission elsewhere in the world. It is often argued that the right of importation is used by copyright owners to unreasonably segment markets and thereby price-gouge consumers. In contrast, copyright owner interests argue the control of all importation is necessary to control pirate imports. The majority of the Committee (Government members) gave the view that there is little useful data about what would actually happen if such restrictions were removed, that much of the data presented by both sides was speculative. It recommended that the Bill go ahead pending a further fact-finding exercise conducted by an independent body. Unfortunately, the Committee suggested the Australian Copyright Council as an appropriate 'independent' body. Of course, the ACC is not 'independent'. It is a prominent and fierce advocate for rights-holders (though largely funded by tax-payers). Its members and directors are rights-holders or rights-holder representatives. This is not the first time that the ACC has been mistaken for an independent body (possibly because its name suggests independence). Hopefully, if the Government is to implement this recommendation, it will choose a truly independent body (if such a body exists) to conduct research. The minority report authored by Senator McKiernan was less forgiving of the Bill. It is scathingly critical of the relevant Government agencies, including the Australian Competition and Consumer Commission, accusing them of 'poor consultation', 'poor research' and being ideologically driven. The ACCC books and software pricing study was severely criticised for being insufficiently rigorous. The intensity with which Senators on the Committee scrutinised the methodology of the ACCC figures can only be healthy for Parliamentary democracy. Unfortunately, similar rigour does not seem to have been applied to figures supplied by copyright owner interests. The minority report appears to accept industry figures, such as levels of piracy in Australia, as facts despite no methodology having been supplied, let alone examined. It is certainly difficult to know with certainty what will happen (or even what is happening) in the information economy, due to the intangible nature of information itself and the evolving state of the technologies. Hopefully, however, in the future all such statistics will be treated to a consistent degree of scrutiny. The Committee report can be found at: http://www.aph.gov.au/senate/committee/legcon_ctte/index.htm >[3] New Copyright Law Review Committee reference: copyright v contract The Copyright Law Review Committee is a Government funded specialist advisory body whose members are drawn from industry and the community. It has previously reported on such issues as the simplification of the Copyright Act and computer software. The CLRC has been given a new reference to examine the relationship between contract and copyright law. Licence agreements, in particular mass-market form contracts, have increasingly come to displace the copyright law as the rule-setting mechanism for many (electronic) publications. Such agreements frequently contain clauses that profess to override legitimate copyright exceptions such as library copying provisions. The CLRC 'will address the important public policy question of the extent to which such agreements can and should be able to displace the provisions of the Copyright Act.' An issues paper will be released shortly followed by an 8-week consultation period. This subject is of enormous importance to the information economy. I urge all interested parties to make a submission. Information about this reference can be found here: http://www.clrc.gov.au/clrc/pres_ref/pres_ref.HTM >[4] Don't copy that floppy phonebook! Any plans you might have had to write out the phonebook by hand (or otherwise reproduce or communicate it) must be put on hold indefinitely. The Federal Court ruled that Telstra's White Pages and Yellow Pages telephone directories are indeed protected by copyright and that this copyright was infringed by the defendant in Telstra Corporation Limited v Desktop Marketing Systems Pty Ltd [2001] FCA 612. This puts Australian law at odds with United States law where telephone directories were held to be without copyright protection in the case of Rural Telecommunication v Feist. The Australian case can be found at: http://scaleplus.law.gov.au/html/feddec/0/20012/0/FD002520.htm >>FOCUS: Copyright and Free Expression<< Copyright law is a type of information regulation which places restrictions on the reproduction and communication of information in order to serve the public benefit by appropriately rewarding creators. It is inevitable that such restrictions may conflict with expectations relating to the freedom of expression. The following three articles illustrate recent conflicts… >[5] Will Gone With The Wind be 'enslaved'? On 20 April, a US District Court blocked the publication of a novel entitled The Wind Done Gone, written by Alice Randall. TWDG is a 're-telling' of Margaret Mitchell's famous novel Gone with the Wind, from the perspective of a slave. Mitchell's estate charged that TWDG is an unauthorised adaptation of her novel and therefore an infringement of copyright. The decision has been attacked as having 'utter contempt for artistic freedom.' The decision was appealed to the 11th Circuit Court of Appeals where the injunction was overturned and publication was allowed to proceed on the grounds that the new novel is a legitimate parody. Ironically, Mitchell's novel, which was published in 1936, would have entered the public domain in 1992, thus putting it beyond the reach of all copyright claims. However, recent extensions to the duration of copyright in the US have given the Mitchell estate another chance to profit from one of the most profitable novels of all time. How such an extension of copyright provides an incentive to an author who has been dead since 1949 is open to question. A number of interesting contemporary literary works have been 're-tellings' of older works such as Peter Carey's Jack Maggs (Great Expectations) and Tom Stoppard's Rosenkrantz and Guildenstern are Dead (Hamlet). (Of course, Shakespeare borrowed heavily from earlier sources to produce some of his greatest works). These works are not, unlike TWDG, parodies. One wonders how they would be treated today if their 'sources' were still in copyright? >[6] Miserable for a reason: Moral Rights and Victor Hugo In a situation similar to that in Item [4], the author of a 'sequel' to Victor Hugo's Les Miserables may be sued by Hugo's grand children because it is alleged that the work infringes the great author's moral rights. Hugo's descendents (as well as literary purists) have reacted angrily to Cosette ou le Temps des Illusions (Cosette or the Time of Illusions), the first of a two-volume sequel to the epic novel written in 1862. Les Miserables has been in the public domain for some time (and has been the subject of a royalty-free Andrew Lloyd-Webber musical and a Disney cartoon). French moral rights, however, are apparently perpetual. The author, Francois Ceresa ,commented that: 'I accept the criticism by the keepers of his memory but I would like them to at least read my book before they throw it in the garbage'. It is unknown how successful possible legal action is likely to be. Again, it is interesting to speculate on whether an unauthorised sequel or 're-telling' might fall foul of Australian law, either on copyright or moral rights grounds (legal action would need to be brought within the period of copyright protection, the life of the author plus 50 years.) There is some protection under our laws for 'parodies' but what about works that do not ridicule their sources (such as Jack Maggs)? This country does not have the benefit of the US First Amendment guarantee of free expression… >[7] Software as free expression: new briefs in the DeCSS case The ADA Monthly Wrap-up has earlier reported on the legal turmoil over DeCSS in the US. DeCSS is a software tool designed to allow the viewing of DVDs on non-Windows operating systems. The Motion Picture industry claims it is designed to aid in the piracy of movies. In the case of Corley v Universal, now before the 2nd Circuit Court of Appeals, the appellants and respondents haved filed briefs which answer questions put to the parties by the Court. Many of the questions concern whether in banning a computer program, the law (in this case the Digital Millennium Copyright Act) is violating the First Amendment guarantee of free expression. Predictably, the movie studios (and the US Government) claim that the program in question is not 'expression' within the meaning of the law but rather just a device, 'a digital crowbar'. The appellants contend that a program can be expression in and of itself and furthermore that banning such programs has terrible implications for fair use: 'No one can force the Appellees to release their works in digital form. Once they do so, however, the First Amendment underpinnings of fair use and the limited nature of the copyright holder's exclusive rights require that these limits on copyright apply unless the Government can sustain its heavy burden to show why these expressive uses should be banned in this new medium of expression.' 'By enacting the DMCA, Congress intervened early at the behest of powerful commercial interests to regulate a robust and expanding market for digital expression. It did so by abandoning the traditional balance of copyright law and by giving the Appellees vastly greater control over access to their works than copyright law has traditionally provided.' The Electronic Frontiers Foundation brief is here: http://www.eff.org/IP/Video/MPAA_DVD_cases/20010530_ny_eff_supl_brief.html The Motion Picture Association of America brief is here: http://www.politechbot.com/docs/mpaa.appeals.brief.053001.html >[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.   News | Membership | Contact Us