| |
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.
--------------------------------------------------------------
October 2001
--------------------------------------------------------------
[1] About this publication
[2] Federal Election
Copyright Policies: Nothing Too Scary
[3] ACCC intervenes in Australia's
first anti-circumvention case
[4] A change in patents policy: owning the the
World Wide Web?
[5] As free as the wind? More on copyright and free
expression
[6] The US Recording Industry: a licence to hack?
[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/ipwoct01.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] Federal Election
copyright policies: nothing too scary
With the Federal Election
just around the corner, Australia's major parties have their copyright policies
out. The good news is that there is nothing particularly worrying. The bad news
is that there is nothing much to look forward to. As far as schools, libraries,
universities and consumers are concerned there is nothing particularly new or
imaginative in the various policies.
For example, it would have been
nice to see someone propose adoption of Part 1 of the Copyright Law Review
Committee's Simplification report. This recommended that Australia adopt a
broad US-style fair use exception; if a particular use is fair according to the
five principles of section 40 then that use would be legally permitted. This
would, among other things, prevent ordinary Australians from falling foul of
the millions of petty infringements that occur every day: from forwarding an
email to taping The Simpsons to watch when you get home from work.
Instead, the various policies are similar to those of previous
Elections, emphasising the mystical copyright balance. Of course, this is not a
bad thing… We can reassure ourselves with the familiar mantra: 'it could
have been so much worse'.
Note that copyright policies are often
divided across a number of policy platforms such as arts, justice, industry and
indigenous. I'll discuss those that are currently available.
The
Coalition Parties
The Liberal Arts Policy, 'Arts for All' reiterates
the need for a balance between 'creativity and innovation while maintaining
reasonable public access to copyright material.' It promises to consult
stakeholders with a view to recognising film directors as 'authors' of the
their films. (Currently ownership of a film is automatically vested in the
producer). It further promises to: (i) develop performers rights legislation
for musical and audio-visual performers; (ii) introduce an indigenous moral
rights regime (presumably as distinct from an entire indigenous intellectual
property regime as has been previously suggested); (iii) extend the duration of
copyright in photographs to life of the authors plus 50 years (currently, it's
50 years from when it was taken (pre-1969) or 50 years from publication (post
1969)).
Furthermore, the Coalition is committed to re-introducing
legislation to remove parallel important on books and software. It also commits
itself in a hazy kind of way to increasing awareness of IP and simplifying the
Copyright Act.
The Australian Labour Party
The ALP's
copyright policies are broadly similar to those of the Coalition. Again, in
their cultural policy, 'Kim Beazley's Plan for the Arts', there is a reference
to balance though in a more muted form: "Labor with therefore move to ensure
that creators, the community and the Australian economy all benefit from
adequate and continuing protection of our intellectual property."
The
ALP goes on to promise: (i) a performers' rights regime; (ii) new life for the
Performing Arts Multimedia Library (which is a kind of guide to dealing with
copyright issues for performing arts companies wishing to digitise their
performances); and (iii) an indigenous moral rights regime.
There are
two principal differences between ALP and Coalition policy. Firstly there is
the issue of parallel importation which the ALP has consistently opposed in
Opposition. The ALP would wind back the PI changes and institute a 'use it or
lose it' policy, extending the current regime for books to CDs, software,
computer games, sheet music and periodicals. Basically, this means that
Australian rights holders have to import their product within a certain time or
lose the right to control such importation. (You would expect parallel
importation to cease to be such a hot political issue as commodities,
particularly IP, are increasingly traded online, beyond the reach of border
controls).
The second difference is a commitment to introduce an art
resale royalty (also known as droit de suite). This is the right of an artist
to receive a proportion of the proceeds from resales of his or her work. Art
resale royalty regimes have existed in Continental Europe for some time. It has
proved controversial in Britain where it is alleged that the coming art resale
royalty will drive art auctions from London to New York or Geneva. Such a
policy in Australia will probably prove very popular with artists but is likely
to be opposed by art investors and auction houses.
Digital Agenda
Reforms
The ALP Justice Policy also promises to review the Digital
Agenda reforms within one year of returning to office, meaning that this new
legislation - the largest and most comprehensive change to Australian copyright
since 1968 - will be thoroughly reviewed just 12-18 months after commencement.
(By way of contrast, the Digital Agenda Act was in development for more than 4
years). Of course, there is a need to monitor such fast-moving subject matter
but hopefully this complex legislation will be given a chance to work (and be
understood by Australians) before being changed again?
In contrast, the
Coalition has pledged to review this act within three years of
commencement.
>[3] ACCC intervenes in Australia's first
anti-circumvention case
The Australian Competition and
Consumer Commission was given leave to appear in the case of Kabushiki
Kaisha Sony Computer Entertainment & Ors V Eddy Stevens as an amicus
curiae (friend of the court).
There is little information available
about the case at this stage but some things are known. Sony is suing Eddy
Stevens for selling 'circumvention devices' which allow games to be played on a
playstation in a way that bypasses the access code. Sony alleges that this
allow for the infringement of the copyright in its games. (Presumably the
device in question is a modchip which allows pirate games to be played on an
otherwise legitimate playstation.)
However, the modification of
playstations also allows for back-up copies of games to be made as well as the
playing of imported games which are region-coded so that they will not play on
playstation machines sold in Australia. Both of these uses are legitimate. A
circumvention device is defined as a device which has 'only a limited
commercially significant purpose or use, or no purpose or use, other than
circumvention'. Presumably the ACCC, which has been sensitive to region-coding
issues in the past, has sought leave to appear so that it can argue that a
device which allows consumers to play legitimate games sourced from anywhere in
the world is not a circumvention device.
However this case turns out,
it will be enormously important in determining the impact that these new
anti-circumvention laws will have.
>[4] A change in patents
policy: owning the the World Wide Web?
The World Wide Web
Consortium (W3C), the non-profit body responsible for development of the Web,
has announced a possible change to its policy on patents. Currently, in order
to promote interoperable Internet standards, the W3C requires that any
technologies adopted as standards must be royalty-free. However, a draft report
by the Patent Policy Working Group (PPWG) has suggested that this be changed to
allow software companies to collect royalties on standards, provided that the
licensing of any patents is done on a 'reasonable and non-discriminatory'
(RAND) basis.
This proposed change quickly attracted a fire-storm of
controversy: criticism of the proposal itself and the allegedly secretive way
in which it has been moved forward.
'This would kill the open-software
movement, allow proprietary companies to "corner" technology markets and
generally be unfair for the necessary free and wide usage that a 'standard'
entails,' said Andy Collier, a open source developer, in a posting to the W3C's
Web site.
In an effort to pacify critics who have suggested that the
proposal is being pushed through without proper public consideration, the W3C
has invited two open source experts to take part: Eben Moglen and Bruce Perens.
(This is a particularly important issue for open source developers. A licence
fee which is 'reasonable and non-discriminatory for IBM and Microsoft, the two
principal backers of this idea, will not be so for an open source project with
no real budget).
Those who claim that patents are necessary for
Internet innovation should recall that all the standards which have made the
Internet such an explosive success over the last 30 years (eg, TCP/IP, SMTP,
HTML) have all been royalty free. Hopefully the W3C will give this matter
careful consideration before abandoning such a proven model for success.
>[5] As free as the wind? More on copyright and free
expression
The May 2001 issue of this publication (http://www.digital.org.au/issue/ipwmay01.htm)
reported on a US case concerning a parody of Gone With The Wind. Entitled 'The
Wind Done Gone', this novel was a partial re-telling of Margaret Mitchell's
famous epic from the perspective of a slave.
The US District Court
granted Mitchell's estate an injunction, restraining distribution of TWDG. This
was overturned by 11th Circuit Court of Appeals earlier this year. Finally in
October, the Court of Appeals handed down a full judgement on the question of
the injunction (but not on the ultimate question of infringement through
there's little doubt how the Court would go on this issue).
The
decision is interesting because the Justices discuss the purpose of copyright
and its connection with freedom of expression in great detail.
In the
majority judgement (the third justice agreed with the majority but wanted to
make a few remarks of his own - indeed his judgement is even stronger than the
majority), Justice Birch writes that: 'in copyright law, the balance between
the First Amendment [guarantee of freedom of expression] and copyright is
preserved, in part, by the idea/expression dichotomy and the doctrine of fair
use.' Fair use is the right to use copyright material for free and without
permission provided it is 'fair' according to the four principles of the fair
use doctrine.
Justice Birch goes onto add: 'Until codification of the
fair-use doctrine in the 1976 Act, fair use was a judge-made right developed to
preserve the constitutionality of copyright legislation by protecting First
Amendment values. Had fair use not been recognized as a right under the 1976
Act, the statutory abandonment of publication as a condition of copyright that
had existed for over 200 years would have jeopardized the constitutionality of
the new Act because there would be no statutory guarantee that new ideas, or
new expressions of old ideas, would be accessible to the public. Included in
the definition of fair use are "purposes such as criticism, comment, news
reporting, teaching . . ., scholarship, or research." S. 107. The exceptions
carved out for these purposes are at the heart of fair use's protection of the
First Amendment, as they allow later authors to use a previous author's
copyright to introduce new ideas or concepts to the public.'
This is
strong stuff, judicially speaking, and from a superior US court. It speaks
volumes about the central role that fair use plays in their copyright regime
and as part of First Amendment law. It is a reminder that fair use (and also
fair dealing in the Australian context) is important, not just as a set of
users' rights but as something that goes to the heart of the purpose of
copyright, the promotion of the creation and dissemination of new
knowledge.
It will be interesting to see how proposed constitutional
challenges to the Digital Millennium Copyright Act go in light of decisions
like this one. The DMCA and some recent court decisions apparently allow for
the eradication of fair use through the use of technological copyright
protection measures. If the view of the 11th Circuit is upheld and fair use is
central to the constitutional soundness of copyright, then the DMCA may be
facing a rough time in the courts.
The full judgement can be found
here: http://laws.lp.findlaw.com/11th/0112200opnv2.html
>[6] The US Recording Industry: a licence to hack?
Was the US recording industry really seeking a licence to
hack? Maybe…
Congress in the US recently passed the USA Act to
introduce new anti-terrorist measures in light of the 11 September attacks.
This Act contains provisions against 'cyber-terrorism' which state that anyone
who breaks into computers and causes damage 'aggregating at least $5,000 in
value' in a one-year period would be committing an offence.
As this
legislation was being drafted in Congress, the Recording Industry Association
of America drafted and supplied a possible amendment to protect its interests:
'No action may be brought under this subsection arising out of any impairment
of the availability of data, a program, a system or information, resulting from
measures taken by an owner of copyright in a work of authorship, or any person
authorized by such owner to act on its behalf, that are reasonably intended to
impede or prevent the unauthorized transmission of such work by wire or
electronic communication of such transmission would infringe the rights of the
copyright owner.' [http://www.wartimeliberty.com/article.pl?sid=01/10/14/1756248]
It was alleged that the RIAA was seeking this exemption from the USA
Act in order to protect its capacity to search for pirate CDs and pirates
themselves. RIAA Vice-president, Mitch Glazier said: "We might try and block
somebody. If we know someone is operating a server, a pirated music facility,
we could try to take measures to try and prevent them from uploading or
transmitting pirated documents.'
But criticism quickly appeared that
suggested that the RIAA was seeking a licence to engage in potentially
destructive hacking of other people's PCs.
Wired Magazine reported the
comments of Orin Kerr, a former Justice Department lawyer now at George
Washington University. Says Kerr: 'It would deny victims their right to sue
copyright owners and their agents if they engaged in vigilante justice by
hacking or other means in an effort to block online music distribution.'
'Another troubling thing is that they appear to be trying to imit their
liability for consequential damages,' said R. Polk Wagner, an assistant
professor at the University of Pennsylvania's law school. 'What if their
efforts caused your hard disk to become fatally corrupted?'
The RIAA
later dropped this amendment. It claimed that revisions to the Act in Congress
had removed the potential problem. But the question remained: what was the RIAA
planning to do such that it needed this amendment?
The RIAA reacted
angrily to suggestions that it was seeking a 'licence to hack' (and moreover
that it was being opportunistic). In a letter provided to Declan McCullagh of
Wired Magazine (and never denied by the RIAA), the RIAA said:
'It is
hard to believe that Billboard would print stories as offensive and
irresponsible as your recent articles attacking RIAA's work on the
anti-terrorism bill. The baseless rumors that we took advantage of this
important piece of legislation to gain rights to hack into personal computers
were debunked before the article was even written; yet Billboard perpetuates
the malicious myths without regard for even the most basic of journalistic
standards.'
And: 'As written, the measure [s. 1030 of the USA Act]
would unintentionally have subjected such businesses to lawsuits for activities
that should be and are currently allowed under law to protect the integrity of
their products and networks.'
And finally: 'Let's be clear: RIAA never
lobbied Congress to give us the ability to hack into PCs, plant viruses,
destroy MP3 files on people's computers, or anything resembling such actions.
These assertions are not only completely false, but also incredibly offensive
and extremely irresponsible.'
But others however are not convinced. The
final word goes to John Gilmore, co-founder of the Electronic Freedom
Foundation:
'This war of blather about what the RIAA did, or didn't, do
in the anti-terrorism bill is entertaining, but the most salient fact is still
missing from the debate:
What "previously legal" acts is RIAA doing or
anticipating, that would have been made illegal under the original proposed
anti-terrorism bill?
Somehow, it seems that the RIAA doesn't want to
tell us. "No, it isn't viruses. It isn't worms. It isn't hacking. Stop
impugning our patriotism. You have seventeen more guesses."
So what
keeps RIAA from just straightforwardly telling us what it is that they want to
do to their paying customers that would "impair the [availability] of data, a
program, a system or information"?'
>[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. |
|
