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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
2003
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[1] About this Publication
[2] US Broadcast Flag get the
go-ahead
[3] New Webcasting Treaty
[4] CLRC Reference: Crown copyright
[5] New UK Copyright Legislation
[6] P2P: Australia's first criminal
presecution
[7] I can copy this, 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]
US Broadcast Flag get the go-ahead
In early November the U.S.
Federal Communications Commission (FCC) approved the use of "broadcast flags"
for digital broadcast television. The "broadcast flags" proposal has been
pushed heavily by the TV and motion pictures industry as a necessary step to
the U. S. transition to digital television set for completion by 2006.
The "broadcast flag" proposal as originally raised is a combination of
technical standards and federal regulations designed to curtail unauthorised
redistribution of digital televisions. The technical part of the proposal or
"the flag" is a simple method for marking digital television programs for copy
protection. More controversial are the regulatory provisions that required that
all digital television (DTV) receivers and devices that receive content- such
as TV, computers, DVD recorders, digital video recorders etc- be built to
protect DTV content marked by the flag.
The proposal had arisen out of
fears that digital technology allows digital content to be copied effortlessly
without degradation to quality. The broadcasting industry has raised concerns
from observing the difficulties the music industry is currently facing.
The ruling made on 4th November by the FCC permits the use of the flag at the
discretion of the broadcaster and are targeted only at products that are
capable of receiving DTV signals over-the-air (thereby excluding digital VCRs,
DVD players and personal computers without digital tuners). All broadcasters
must comply with the broadcast flag requirements by July 1 2005. To facilitate
the adoption of broadcast flag technology in television receivers and related
equipment by 2005, the FCC has implemented an interim policy for
"certification" of content protection technology.
The FCC has also
adopted a Further Notice of Proposed Rulemaking (FNPRM) and is currently
accepting submissions ( Until Jan 14) on a permanent objective process for the
approval of digital recording and output content protection technologies . The
broadcast flag proposal has raised many policy issues. Amongst them are public
interest concerns such as ramifications for "fair use" and the continued
ability to undertake activities such as "time-shifting" and other forms of
reasonable copying and sharing which consumers have long enjoyed. Great concern
has also been voiced by IT companies and consumer groups about the effect of
the flag regulation on competition and innovation and also the possible "creep"
of flag regulation.
Federal Communications Commission website .
[3] New Webcasting
Treaty
In a similar vein, webcasters have also been agitating for
the creation of a multilateral treaty creating more extensive rights to protect
webcasters of audiovisual materials on an international level.
After
many similar previous proposals and lobbying attempts by webcasters, the World
Intellectual Property Organization's Standing Committee on Copyright and
Related Rights has agreed to prepare a draft of the treaty by April 1, 2004.
The final text of the proposed treaty will then be on the agenda for discussion
by the Committee in another meeting in June 2004 with the aim of having the
treaty available for signing at a diplomatic conference scheduled in mid
2005.
The push for the treaty has come primarily from US broadcasting
industry groups who claim that current available technology has created an
uncertain and discouraging environment for innovation and the creation of
content for webcasting. The current proposal provides that webcast material
will receive protection akin to that which traditional broadcasts and radio
currently enjoy.
The proposed treaty remains controversial for many
because of the ramifications on the use of and access to public domain
materials. The proposals under discussion would give a new 50-year right over
webcast material already in the public domain -such as news clips, government
material or the broadcast of a classic movie. Under the provisions of the
proposed treaty, no reproductions may be made from webcast transmissions of
public domain material; a person wishing to store or redistribute such material
will be forced to seek it from the original source. Critics of the proposed
have further highlighted the fact that the current definition of a broadcaster
in the treaty in effect generates a whole new class of right holders. According
to the treaty language proposed by the U.S. delegation, the definition of
Webcasting is "the making accessible of transmissions of the same sounds,
images, or sounds and images or the representations thereof, by wire or
wireless means over a computer network at substantially the same time".
Commentators argue that the breadth of the definition is worrisome and could be
construed as wide enough to include Web pages. The result of this might create
a new intellectual property right for virtually all Internet publishers
(perhaps even peer-to-peer networks), further jeopardising access to works in
the public domain.
These issues are part of a larger proposal before
the committee titled "Protection of the Rights of Broadcasting Organizations".
A
Report
on the issues relating to the webcasting treaty and the 10th Session of the
WIPO committee is available.
[4] CLRC Reference: Crown copyright
The Attorney-General announced a new reference for the Copyright
Law Review Committee (CLRC) at the biennial Copyright Law and Practice
Symposium in Sydney to review and make recommendations about government
ownership of copyright.
The Copyright Act currently puts the
Commonwealth and State governments in a privileged position in relation to
ownership of copyright. Material which is created by, or on behalf of, a
government is owned by the government unless there is a prior agreement which
states otherwise. In addition the current legislation provides that copyright
in material first published by a government automatically passes to the
government, unless there is an agreement to the contrary.
This
reference follows up on recommendations made by the Intellectual Property and
Competition Review Committee (IPCRC) in 2000 in the Review of Intellectual
Property Legislation under the Competition Principles Agreement (the Ergas
Committee). In that review the IPCRC recommended that the Copyright Act be
amended to ensure that the Government is not provided with preferential
treatment compared with other parties. In response to the IPCRC recommendations
in 2001, the Government however opted to develop best practice policy
guidelines rather than repealing the government provisions in the Act.
The full terms of reference is available in from CLRC's
website.
The CLRC will have
its first meeting in January 2004 and expected to give its report by November
2004.
It is also interesting to note that simultaneous to the CLRC
review, government use of patents and designs will also be reviewed by the
Advisory Council on Intellectual Property (ACIP). The ACIP review will assess
whether the current provisions for crown use of patents and designs is properly
balanced and determine whether the current provisions support or undermine the
rationale for intellectual property regime.
A
discussion
paper on the ACIP review has been released and submissions will be accepted
until 20th February.
[5] New UK Copyright Legislation
The UK joins Austria, Denmark, Germany, Greece, and Italy in
ratifying new legislation to meet the obligations under the EU Copyright
Directive. The new UK legislation, Copyright and Related Rights Regulations
2003 (Statutory Instrument 2003 No. 2498 ) commenced on 31 October and
introduced some significant changes to the copyright regime which will
dramatically affect library practice.
One of the most important changes
is that copying for commercial purposes is no longer allowed under the
exception for research or private study. This amendment in the law requires
librarians and organisations to assess the purposes of any copying to determine
whether they are of a commercial nature. The British Library has made available
some general guidelines to assist organizations to determine the nature of
their intended copying. The guidelines suggest that "commercial purposes" is
fairly wide and cover copying that is or in the future may be used for a
commercial end. For instance the guidelines suggest that an amateur writer
researching a book with the intention or hope of getting it published will be
copying for commercial purposes. The main focus in this assessment is the
intention of the copying rather than nature of the organisation or position of
the person carrying out the copying. The guidelines suggest that copying
carried out by a charity for the purpose of raising funds will be considered as
commercial. Likewise a commercial law firm copying for a pro bono matter will
generally be considered as non-commercial (although if the pro bono work was
carried out in the hope of generating more work, the copying would be
considered commercial).
The responsibility for determining whether the
copying is of commercial or non commercial nature lies with the individual or
organisation carrying out or requesting the material. The new
legislation
can be accessed through the UK copyright office.
[6] P2P:
Australia's first criminal presecution
Australia's first criminal
prosecution for internet music "piracy" ended with two university students from
Sydney receiving 18-month suspended jail terms The students were the webmasters
in charge of the popular digital music site MPW3/WMA Land, which offered 390
CDs and more than 1,800 tracks for download.
In delivering the judgment
Deputy Chief Magistrate Graeme Henson said that the students were aware that
their activities were illegal and had gone to some lengths to avoid detection.
The judge held that the seriousness of the offences warranted a jail but
suspended the sentences on account of the students' youth and the fact they did
not profit from their website.
The case headlined newspapers and has
generated a variety of reactions. Music recording companies have criticised the
decision as being too "weak" while music fans have noted the decision as an
call for widespread file sharing practices to be better recognised and embraced
by legislature and music industry. Ironically, a few days after the decision, a
survey conducted by music industry services film Inmedia, Music -The
Business, Law and Technology report was released which lent support for the
changing attitudes towards filesharing. The survey showed that out of the 200
musicians and music professionals surveyed, less than half (48 per cent) of
respondents felt that downloading free music constituted theft from artists and
composers, while only 25 per cent felt it was theft from record labels.
The case has also been closely followed by announcements of the launch
of legal file-sharing ventures by three separate companies anticipated early
next year which will offer pay per song services much like the services offered
by iTunes currently in the US and Canada.
The
survey can be found on Inmedia
site
[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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