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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
2004
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[1] About this Publication
[2] Take-Down Notice Procedures Conflict
With Fair Use In The US
[3] OPG v Diebold: US Federal Court Sets Precedent
to Restrict Abuse of DMCA Take-Down Notice Procedures
[4]The AUSFTA -
Update
[5] Controversial Copyright In Mexico
[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/issue.htm. If you have
any suggestions as to what should go in the next issue, please let Sarah
Waladan know by email: (swaladan@nla.gov.au).
Nothing in
this publication constitutes legal advice.
[2] Take-Down Notice
Procedures Conflict with Fair Use in the US
The Brennan Center for
Justice at New York University Law School, through its Free Expression Policy
Project (FEPP), has released its preliminary report on the effects of cease and
desist letters pursuant to the US Digital Millennium Copyright Act
(DMCA).
This report is particularly interesting and relevant to
Australia following the Australia - US Free Trade Agreement (AUSFTA), and the
provisions therein which relate to take-down notices and procedures for
carriage service providers (CSPs) and internet service providers (ISPs). The
Australian Government is in the process of finalising legislation and
regulations which will provide for such a scheme in Australia. How similar such
a scheme will be to the current 'cease and desist' provisions of the DMCA is
yet to be seen, however Australia will be required to enact provisions
consistent with the AUSFTA.
In the US, the DMCA provides for a scheme
which limits the liability of CSPs in situations where those CSPs have abided
by the detailed 'cease and desist' procedures prescribed in the legislation.
Section 512 of the DMCA provides that CSPs must remove web sites and other
on-line material once they receive a 'take-down' letter from a copyright owner
saying that the material is copyright-protected. CSPs can be liable for hosting
this material if they do not 'expeditiously' comply with the take-down
letters.
Among its preliminary conclusions the FEPP noted that 'we can
infer that cease and desist letters sometimes have chilling effects on speech
that might qualify as fair use. Critical factors in determining whether the
recipient of such a letter will comply seem to include awareness that fair use
provides a defense; support from the community; and a non-risk-averse
temperament.'
The FEPP found that the DMCA is more likely to have such a
negative impact on fair use because it requires the ISP to remove the material
once the letter has been received, without actual proof of a copyright
violation. This puts the onus on the user or CSP to assert his or her right.
The FEPP has thus far involved analyzing 131 letters which were
deposited with them during 2004. Seven specific examples of typical 'cease and
desist' letters that they examined during the project and which arguably seek
to encroach on fair use, are noted in their preliminary report which can be
accessed from the website:
http://www.fepproject.org/
The
preliminary results are suggestive of a pattern of encroachment on the concept
of fair use. It will be interesting to see the final results of this
project.
[3] OPG v Diebold: US Federal Court Sets Precedent to
Restrict Abuse of DMCA Take-Down Notice Procedures
In addition to
the above cited FEPP report which illustrates the potential for abuse of
stringent take-down notice procedures by over-zealous copyright owners, the
case of On-line Policy Group v Diebold provides another such
example.
As stated above, pursuant to the DMCA, material which a
copyright owner alleges to be in breach of copyright is required to be taken
down before any finding by a judicial authority that such a breach has in fact
occurred. Thus there is a clear risk that access to a wide range of material is
being restricted by use of the take down procedures, irrespective of whether or
not copyright laws have actually been breached.
In the case of Diebold,
Diebold (an electronic voting company) sent dozens of 'cease and desist'
letters to Internet Service Providers hosting websites linking to or publishing
copies of Diebold internal memos. OPG (a not-for-profit organisation) was the
only ISP to resist the takedown demand from Diebold.
The case was
handed down on 30 September 2004 and can be viewed at:
http://www.lessig.org/blog/archives/diebold.pdf
The
Court made two important findings. Firstly, it held that the use of the
material the subject of Diebold's claim constituted a fair use pursuant to US
law. Therefore, OPG had a defense at law and were not in breach of
copyright.
Secondly, the Court held that Diebold knowingly
misrepresented that OPG had infringed Diebold's copyright, at least to the
extent that Diebold knew that portions of the alleged breaching material would
have been subject to the fair use exception:
'No reasonable copyright holder
could have believed that the portions of the email archive discussing possible
technical problems with Diebold's voting machines were protected by
copyright..'
The Court therefore held that Diebold had
breached section 512(f) of the DMCA and awarded OPG monetary relief.
The Electronic Frontier Foundation, who represented OPG, commended the
Court for recognizing the fair use of copyrighted materials and for providing a
remedy for improper claims of copyright, stating that 'the decision is a
victory for free speech'.
This decision is no doubt reassuring for user
groups and CSPs in the US. However it is noteworthy that resources often
prevent organisations such as OPG from asserting their rights.
As noted
above, this issue will become particularly relevant if the Australian
Government interprets the AUSFTA as requiring Australia to implement a
take-down procedure such as is provided for by the DMCA in the US, where
material is required to be removed at the request of the copyright owner
without the matter going before a judicial authority.
[4] The AUSFTA
- Update
The US has not yet decided whether it will accept Labor's
amendment in the Senate which aims to stop drug companies using patents to
prevent the release of cheaper generic medicines.
Whilst the vital date
for exchange of letters was not achieved, both the US and Australia maintain
that the aim is to implement the agreement in January 2005. This can still be
done despite the fact that an exchange of letters did not occur by the 31st of
October, by both countries agreeing to vary the timetable for
implementation.
Trade Minister Mark Vale reported to the ABC (AM, 28
October 2004) that there would be no re-negotiation of the agreement, and that
the dispute in relation to pharmaceuticals relates to interpretation of
language and technical implementation rather than a fundamental disagreement.
Both sides are now checking that the enabling legislation reflects the
negotiated outcome.
[5] Controversial Copyright Law In
Mexico
The Mexican Congress has passed a bill to amend their
Copyright Act, which provides significant additional rights to authors and
holders.
The Bill will increase the copyright term to the life of the
author plus 100 years (an increase of 25 years). Additionally, the Mexican
Government retains the power to collect fees in relation to the use of works
once this term has expired.
The Bill will also enable authors and
artists to claim royalties for the secondary use of their copyrighted works,
that is, they will be able to claim for public use or performance of their
works, whether or not they hold the corresponding rights.
Creators of
works will be entitled to a resale royalty. Brokers and galleries will thus be
required to inform artists about any sales so that creators can recoup their
royalties.
The Mexican electronics industry has strongly opposed the
amendment Bill, and has been lobbying the president to use his power of veto to
stop the Bill.
For more information, please refer to the World Copyright
Law Report at
http://www.worldcopyrightlawreport.com/Article/?r=508&c=20004233
[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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