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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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November 2001
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[1] About this publication
[2] Disappointment for
freedom of expression #1: the 2600 case
[3] Disappointment for freedom of
expression #2: the Felten case
[4] Public Health and the TRIPS Agreement:
rethinking drug patents
[5] When is a film not a film? The strange case of
the DVD
[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/ipwnov01.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] Disappointment for
freedom of expression #1: the 2600 case
A court decision
handed down at the end of November proved to be disappointing for freedom of
expression. The case, heard by the Appeals Court of the Second Circuit of the
United States Federal Court, involved a challenge to the Digital Millennium
Copyright Act (the US equivalent of our Digital Agenda Act). Many commentators
and freedom of expression groups have asserted that the new anti-circumvention
device laws in the DMCA (which prohibit the manufacture and use of devices
designed to get around copyright technological protection measures) harm
freedom of expression in the US (and elsewhere).
It is suggested that
the laws do this in two ways: (i) by proscribing certain types of technology
and technology research; and (ii) by allowing for the effective elimination of
fair use and the public domain through 'digital lock-up'.
In the case of
Universal v. Reimerdes also known as the 2600 case, after the hacker
magazine which was sued (find out more about this case at:
http://www.digital.org.au/issue/ipwmay01.htm
); Hollywood sued 2600 magazine because it linked to a piece of software
called DeCSS which allows for the decryption of DVDs. The movie studios allege
that it will be used for infringement (though seemingly no evidence of actual
infringement was ever proffered in this case). The program's creator, a
Norwegian teenager, said that he created the program so that he could view
legitimate DVDs he had purchased on his PC running the Linux operating
system.
The lower court ruling by Judge Kaplan found for the movie
studios. Kaplan J not only injuncted any dissemination of the software but also
the act of linking to it.
The defendant, backed by the Electronic
Freedom Foundation, appealed. They asserted that the First Amendment to the
Bill of Rights protects all expression and that as computer code is a form of
speech it too is protected.
The court agreed that a computer program is
a form of speech and thus entitled to First Amendment protection. However, they
disagreed that the DMCA was an unconstitutional limit on free expression. Such
a restriction is acceptable in US law if it is content-neutral (ie, not
focussed on one particular type of content), advances a legitimate Government
interest and is targeted precisely at a certain type of expression.
The
court also rejected arguments that the ban on dissemination of the computer
program trampled on fair use rights.
The plaintiff, Eric Corley, is
currently considering whether or not to appeal to the Supreme
Court.
>[3] Disappointment for freedom of expression #2: the
Felten case
The second disappointing copyright/freedom of expression
decision was handed down by a US District Court judge in New Jersey. In the
case of Felten v RIAA, Professor Felten was suing the Recording Industry
Association of America after it allegedly threatened to sue him if he published
his digital music encryption research findings. Felten sought a 'declaratory
judgement', that is, a declaration from that court that a proposed course of
action is free from legal question. He argued that the RIAA's threat had had a
chilling effect on his freedom of expression
The RIAA countered by
saying that it had no intention of suing Professor Felten. You can read the
RIAA's 'non-threatening' letter here:
http://www.cs.princeton.edu/sip/sdmi/riaaletter.html
However,
Judge Garrett Brown rejected Felten's suit after just 25 minutes of debate and
without listening to any freedom of expression arguments.
Professor
Felten and his colleagues are planning to appeal the decision to the Third
Circuit Court of Appeals.
>[4] Public Health and the TRIPS
Agreement: rethinking drug patents
The last meeting of the World
Trade Organisation in Doha, Qatar featured a ministerial declaration on the
relationship between public health and the Agreement on Trade-Related Aspects
of Intellectual Property Rights (known as TRIPS which is catchier than
ATRAIPR).
The declaration begins: '1. We recognize the gravity of the
public health problems afflicting many developing and least-developed
countries, especially those resulting from HIV/AIDS, tuberculosis, malaria and
other epidemics.'
And goes onto say:
'4. We agree that the TRIPS
Agreement does not and should not prevent Members from taking measures to
protect public health. Accordingly, while reiterating our commitment to the
TRIPS Agreement, we affirm that the Agreement can and should be interpreted and
implemented in a manner supportive of WTO Members' right to protect public
health and, in particular, to promote access to medicines for all.'
This
declaration represents (hopefully) the end of a long-running dispute in
international patent circles, provoked by the desire of developing nations such
as South Africa and Brazil to make patent-protected HIV drugs more readily
available to their populations.
The TRIPS Agreement states that all
member nations must recognise the patents for inventions, including
pharmaceuticals, from all other members for a period of 20 years. However,
exploitation of the monopoly granted by patent protection has led to prices for
a number of HIV drugs that are unaffordable for many of the developing nations
that have been hardest hit by the AIDS epidemic. Consequently, some developing
nations resolved to compulsorily licence these drugs and produce cheaper
generic versions to (start to) solve their public health crises.
This
move towards compulsory licences has been strongly opposed by many developed
nations. A group of 39 pharmaceutical companies sued the South African
Government over its plan to issue a compulsory licence; these companies later
backed down in the face of overwhelming public pressure.
At the WTO
meeting, the declaration was pushed by South Africa, India and Brazil but
opposed by the US, Switzerland and Japan who argued that it would dilute patent
protection. However, the declaration passed in an altered form after the
developing world flexed its muscles.
Some commentators suggested that
previous strenuous objections on the part of the US were watered down following
the recent anthrax outbreak. Its hardline stance against public health
emergency compulsory licences in the developing world appeared harsh in light
of recent calls by some in the US for the compulsory licensing of the
anti-anthrax drug, Cipro, led by Senator Charles Schumer. (Though, for the most
part the Bush Administration opposed compulsory licensing in the US as
consistently as it did in the developing world).
Jamie Love, a prominent
Health/IP activist told the San Francisco Chronicle: "The Cipro thing was
timely. When the US did not like the price of a medicine, we were very fast to
say we might override patent rights. When Brazil did the same thing (for AIDS
drugs), they were savaged."
The new declaration allows member nations of
the WTO to decide when and how they will allow the production of generic drugs
to fight health emergencies. The next question will be as to the exact legal
effect of the declaration...
The WTO declaration on public health and
TRIPS can be found here:
http://www-chil.wto-ministerial.org/english/thewto_e/minist_e/min01_e/mindecl_trips_e.pdf
>[5]
When is a film not a film? The strange case of the DVD
Are
DVDs films or are they computer programs? This is a questions currently before
Australia's Federal Court. As the rental market for DVDs grows steadily, Warner
Home Video announced a change in its DVD distribution policy designed to
substantially increase its revenue -- and the video stores feel that it's at
their expense.
Warner has begun releasing DVDs in 2 flavours: silver for
retail to consumers at a wholesale price of $24 and blue for the rental market
at a wholesale price of $55. Outraged smaller video stores chains (all chains
except Blockbuster and VideoEzy) and their peak body, the Australian Video
Retailers Association, have launched an action in the Federal Court seeking a
declaration that Warner has no power to control the rental of DVDs.
It
all hangs on what DVDs are: films or computer programs. Warner argues that DVDs
are computer programs, because under the Copyright Act the copyright owner of a
computer program has the right to control commercial rental arrangements. The
owner of a cinematograph film has no such right. Warner will be arguing that
'movies' on video are legally very different from 'movies' on DVD.
The
case obviously has enormous implications for video store owners -- and their
customers. It may be an another signal of the trend for copyright owners to
seek greater control of 'downstream' markets and uses. The case will probably
also have a lot to say about the definition of 'computer programs' in the
Copyright Act, always an important and difficult question.
Final
submissions were heard in early November.
>[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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