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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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October
2003
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[1] About this Publication
[2]Copyright Term Extension: the
pressure rises
[3] The Shift Key: a Circumvention Device?
[4] U.S.
Triennial s1201 Rulemaking goes Halfway
[5] Lexmark v Static Control
update
[6] 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]
Copyright Term Extension: the pressure rises
Copyright term extension
has been a live issue in Australian copyright policy since the announcement of
the negotiations with the United States over the proposed Free Trade Agreement
(FTA) last year. As with other topics under negotiation with the U.S., there
have been little official statements on the progress of negotiations. However,
it is generally acknowledged that request has been made by the U.S for
extension of the copyright term in Australia from it's current determination,
life of author + 50yrs to match the term in the U.S. copyright law which is
life of author + 70yrs.
However, even in the U.S., the issue of the
appropriate term of copyright has been controversial. The issue was under
intense scrutiny only recently in relation to the landmark case of Eldred v
Ashcroft (see Jan 2003 IPW); although the U.S. Supreme court affirmed the
constitutionality of the Copyright Term Extension Act (CTEA), the case raised
alarm and dissatisfaction with many commentators.
In Australia, the
issue of term extension has been met with equal apprehension; heated debate
rages in relation to the effects of agreement to such terms within the
framework of FTA (it is important to note that the issue of copyright term
extension is not within the scope of the current Digital Agenda Review). Some
copyright owners have welcomed the notion of such an extension whereas others
have been more cautious about it's real contribution to the copyright regime.
Copyright user groups have vehemently opposed the request because of the
detrimental effects on entry of works into the public domain.
To add
fuel to the controversy, a report titled Copyright Term Extension:
Australian Benefits and Costs was published by Allens Consulting group in
July. The report was commissioned by, Motion Pictures Association (supported
also by Screenrights, CAL and APRA) and intended to provide some data on the
possible effects of copyright extension. Given the difficulty of accurately
assessing such economic effects, it may be forgiven that the report presented
little meaningful data. However, it remains baffling the manner in which its
acknowledgement of the lack of evidence is reconciled into a conclusion that
extension of term would be advantageous for the Australian economy.
Frustratingly, the report fails to distinguish and take account of the
distinction between retrospective and prospective costs and benefits of
copyright term extension. One result of the omission is that the paper
conveniently avoids discussion about the effect (or lack thereof) of term
extension in existing works - ie that extending the term willprovide no further
incentive for dead authors to produce more works nor benefit them. The report
also fails to engage in an assessment of what effect on incentive term
extension would have- it simply presumes that extended copyright term equates
to increased incentives of individuals or companies to create. Such a
presumption is highly speculative.
The report is also alarmingly
dismissive of what would seem to be an extremely important factor in the
consideration of economic costs and benefits of copyright term extension in
Australia; Australia remains by far a net importer of copyright materials. The
report brushes over the point as if it were pesky detail rather than a primary
concern for Australia's present and future trading strategy and does not
provide any basis for its assertions that copyright extension would be positive
for the future of Australia's copyright industries.
The report
can be found through the Allens
website.
Prof Lawrence Lessig has also made some interesting notes
on the report in his
blog.
[3] The Shift Key: a Circumvention Device?
Circumvention devices and their appropriate role within the
copyright regime continue to raise debate. Early in the year, Suncomm (a
digital rights management company) released "MediaMax" CD copy protection
scheme which was used by BMG music for the first time on a U.S production
earlier this year.
Subsequently Alex Halderman, a Princeton University
computer science graduate student published a research paper showing easy
methods of breaking MediaMax scheme. One method involved the simple act of
pressing the Shift key on a PC keyboard when inserting the CD into the drive;
another involved disabling the "autorun" feature on PCs that automatically runs
a program on a CD when it is inserted - which many advanced PC users do anyway.
Both methods, amongst a handful of others, rendered MediaMax ineffective.
The release of the paper caused much consternation amongst the high
tech industry with SunComm initially threatening to sue the student over the
report. SunComm however later withdrew its original media release which
suggested that the student had criminally violated the DMCA.
The
absurdity of the episode illustrates what commentators have raised as problem
for some time. The anticircumvention provision of the Digital Millennium
Copyright Act has created scenarios whereby any technology or devices promoted
as anti circumvention device is protected by the DMCA without regard to the
effectiveness of the device. While Halderman's work is probably not criminally
liable (s1201 of the DMCA carves out circumvention for research purposes), an
ordinary consumer pressing Shift while inserting a CD into a drive may be
breaking the law under the DMCA's general ban.
The current provisions
thereby allows media companies to evaluate and determine the applicability of
the DMCA to technology; any technology marketed and sold as "copy protection"
currently benefits from the DMCA provisions, creating an environment whereby
copyright owners become pitted against research and development of
technology.
[4] U.S. s1201 Triennial Rulemaking goes
Halfway
Librarian of Congress in the US has issued its ruling on
exceptions to the Digital Millennium Copyright Act (DMCA) prohibition on
circumventing devices. The DMCA bans the circumvention of technological
protection measures and the ruling made by the Librarian in the triennial
proceedings created a total of 4 narrow exceptions to the general ban. The four
exceptions issued by the Librarian will be in place for the next three years.
Two of the four exceptions are new introductions which allow
circumvention in relation to accessing computer programs and video games
distributed in formats that have become obsolete and which require the original
media or hardware to run. Library groups have expressed disappointment that
this exception is restricted to computer programs rather than encompassing all
literary works.
The second new exception created relate to literary
works distributed in ebook format when all existing ebook editions of the work
(including digital text editions made available by authorized entities) contain
access controls that prevent the enabling of the ebook's read-aloud function
and that prevent the enabling of screen readers to render the text into a
specialised format.
The other two exceptions are very similar to the
exceptions issued in 2000 which relate to access to compilations of lists of
websites blocked by filtering software and access to computer programs
protected by "dongles" that are malfunctioning or obsolete. Consumer groups
that have been active in the proceedings have stated that the ruling made by
the Librarian continues to leave consumers high and dry in relation to the
ability to access their DVDs, CDs, and ebooks on the different platforms.
Libraries, researchers, technologists and other critics of this section
of the law have insisted that the current anti-circumvention provision stifles
fair use of copyrighted materials and "chills" legitimate research and
education activities that are crucial to the advancement of science and
technical innovation (the constitutional justification for the creation of
copyright).
The new 1201 rule
and commentary are available on the U.S. Copyright Office web page.
[5] Lexmark v Static Control Update
The February 2003
issue of the IPW reported on Lexmark v Static Control, a case over the whether
Static Control may sell chips that permit Lexmark's toner cartridge to be
refilled. In February, a district court judge granted Lexmark a preliminary
injuction, the case was appealed shortly after and is currently being
considered by judges.
In late October, the U.S. Copyright Office issued
an opinion which stated Lexmark's invocation of the Digital Millennium
Copyright Act (DMCA) against Static Control is invalid. The opinion is not
binding on the judges who are considering the case but will nonetheless be
influential.
The Copyright Office's opinion stated that the DMCA
already permitted Static Controls's Smartek chip, through provision that allows
technological measures to be bypassed "for the sole purpose of identifying and
analyzing those elements of the program that are necessary to achieve
interoperability" with other computer programs. However, Lexmark also alleged
traditional copyright infringement of Lexmark's copyrighted Toner Loading
Programs by the Smartek chips. On this issue, the Copyright Office's opinion
was not as re-assuring.
The case has been controversial and high
profile for its significance on issues of competition and monopoly in relation
to all consumer products.
The judge's decision is expected in the next
few weeks The US copyright Office's
opinion
is available from their website.
[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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