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. -------------------------------------------------------------- September 2001 -------------------------------------------------------------- [1] About this publication [2] MOCA: a superior legislative blend [3] A code of conduct for Australian copyright collecting societies [4] This year's DMCA. Meet the SSSCA. [5] Copyright and search engines: a collision waiting to happen? [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/ipwsep01.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] MOCA: a superior legislative blend MOCA is the Music Online Competition Act, a Bill proposed for passage by the US Congress by Virginia Democrat Rick Boucher (and not to be confused with mocha, a 'choice variety of coffee' or coffee mixed with chocolate). Representative Boucher has been one of the few Congressmen or Senators to take a prominent stand in favour of fair use rights and against the ever-greater expansion of intellectual property protection. He has introduced MOCA into Congress to protect the interests of consumers and arists with respect to music online. His Bill would (among other things): expand the current exception for music retailers (which allows them to play songs in their stores) allowing them to use a central server to serve multiple stores. It also extends this exception to online music retailers such as Amazon; expand the ephemeral recordings exception for broadcasters and webcasters allowing them to make multiple ephememal copies to suit a variety of transmission formats. It would also allow the copying of individual songs; alter the current musical broadcasting statutory licence requiring royalties to be shared equally between artists and recording companies; and that these royalties must be paid directly to the artists; and assure non-discriminatory licensing of music online to non-affiliated entities (currently the five major record companies have split into 2 online music transmission blocs; this provision is designed to force them to licence other musical sites so as to prevent an oligopoly from developing). Further information on the MOCA Bill can be found here: http://www.house.gov/boucher/docs/moca-summary.htm >[3] A code of conduct for Australian copyright collecting societies Copyright collecting societies, organisations which collectively administer various copyright rights on behalf of their creator or publisher members, are not well understood by the public. Their operations have sometimes been criticised for lacking transparency. For example, the House of Representatives Standing on Legal and Constitutional Affairs conducted an inquiry into music licensing as "a result of continuous complaints by small business (eg proprietors of shops, hairdressers, doctors) and their representative bodies to Members of Parliament and Government agencies about a licensing drive by the Australasian Performing Right Association and, to a lesser extent, the Phonographic Performance Company of Australia." One of the recommendations of this Committee's report (which can be found at: http://www.aph.gov.au/house/committee/laca/Inquiryincopy.htm) was that: "a voluntary code of conduct for copyright collecting societies be developed in consultation with the collecting societies, relevant Commonwealth Government departments, user groups and other interested parties. The Code of conduct should outline standards of acceptable licensing practices and activities." The Government accepted this recommendation in its response to the Committee's Report (the response can be found here: http://www.ag.gov.au/publications/dstmfinalgovtresp.htm). As a result the copyright collecting societies has produced a draft code of conduct for copyright collecting societies. This code can be found here: http://www.copyright.com.au/corporate/draft%20code%20of%20conduct.pdf On 21 September, a wide variety of interests met in a moderated forum that was quite productive to discuss this proposed code. Major points of interest included exactly how a dispute resolution process might work (and whether one should be mandated across the copyright collecting sector) as well as if and how non-collecting society interests might be represented on the code of conduct compliance committee. Comments on this code of conduct are still being accepted but be quick. The deadline for final comments is 5 October. Comments can be sent to APRA (www.apra.com.au). The ADA will also shortly be submitting further comments on this document. >[4] This year's DMCA: meet the SSSCA If you follow copyright happenings around the world (or even if you just follow technology news generally) you are probably aware of the Digital Millennium Copyright Act. This US Copyright legislation from 1998 outlaws certain types of technology regardless of their intended function and has had a chilling effect on free speech by preventing IT security researchers from discussing their findings. The DMCA has become intensely controversial and will be challenged in the US courts. In the meantime, a new contender has appeared for most dangerous piece of copyright legislation, the Security Systems Standards and Certification Act. This Act has been proposed by Senator Fritz Hollings of South Carolina, Chairman of the powerful Congressional Commerce Committee. (Hollings also happens to the one of the largest recipients of political donations from the copyright industries). The SSSCA, which has not yet been introduced into Congress, would provide that: "It is unlawful to manufacture, import, offer to the public, provide or otherwise traffic in any interactive digital device that does not include and utilize certified security technologies that adhere to the security systems standards adopted under section 104. " An "interactive digital device" is defined as: "any machine, device, product, software, or technology, whether or not included with or as part of some other machine, device, product, software, or technology, that is designed, marketed or used for the primary purpose of, and that is capable of, storing, retrieving, processing, performing, transmitting, receiving, or copying information in digital form." Commentators have pointed out that, not only does this include all PCs and PC perihperals such as printers, but also includes such things as computer-controlled ignition systems and electronic sports scoreboards. This means that any remotely digital device would have to have new SSSCA-certified security technologies, designed to protect copyright material, built into them. Industry is given 12 months to come up with appropriate standards after which the Federal Government will step in to mandate a standard. It is not presently clear how this copy-protection technology will work. This legislation has been branded as 'scary' by many outside the copyright industries. To begin with, it would represent the final death of the Fair Use doctrine: your own technology that you have lawfully purchased would not permit you to make copies that you are otherwise permitted by law to make (such as back-up copies of your hard drive). All unauthorised (by Hollywood, that is) copying or communication of intellectual property would be impossible. It would also prevent free copying of copyright material once the copyright had expired. It may even be that these technologies might make replication of your own work difficult. (It will be impossible to know this until the security standard had been written in a process that involves no public participation). It has also been asserted that this legislation would make open source software such as the Linux operating system illegal. This is because the Act requires that all hardware and software include the required certified security technology; obviously such technology would have to be hidden and/or encrypted otherwise its removal would be a trivial matter. But in open source software, all aspects of the software code must be publicly available... So programmers writing their snippets of code at home would be required, under pain of criminal penalty, to include security technologies in their programs which they will not be allowed to see inside. Senator Hollings himself seems to have become scarce and his office refuses to discuss this proposed legislation. Hollywood though, is pleased. A Vice-President at the Walt Disney Corporation (which helped to draft the Bill) described it as "an exceedingly moderate and reasonable approach." Others were not so sanguine. "It's about as egregiously an anti-technology bill, in its draft form, as anything I've ever seen," said Jonathan Potter of the Digital Media Association. "It would have the United States government approving or disapproving every semiconductor, every server and essentially any digital information technology device prior to coming to market." Copyright scholar, Jessica Litman said: "This appears to be an attempt to expand the concept to anything that has a microprocessor in it and to have everyone agree or to have the government set technological standards that will enforce copyright owners' preferences... Forgetting all the reasons why this is bad copyright policy and bad information policy, it's terrible science policy." It remains to be seen whether this legislation will be passed. As is often the case with such proposed laws, it is a race against time. Will a sufficient portion of the public learn about this law in time to stop it being pushed through Congress by vested-interests? The current draft text of the SSSCA can be found at http://cryptome.org/sssca.htm . >[5] Copyright and search engines: a collision waiting to happen? Search engines, sites which index (a large part of) the web and then allow the public to search this index using keywords, have become a vital part of the Internet infrastructure. Without them, we're lost in a sea of millions of unfindable websites. But new functions that 'add value' to the serach process raise interesting copyright questions. For example, the highly popular Google search engine caches sites that it indexes allowing the searcher to go to a cached version of that site if the original is down or slow to access. The cached version is a reproduction normally made without explicit permission -- because it would be impossible to get permission to copy billions of pages. And this version exists long after the original may have gone. What if the original is a newspaper article that is displayed free for a short period when current but is then shifted into a pay-per-view archive (something which is not uncommon with some online news sites)? In this case, the free unauthorised cache would be competing with the commercial archive... A recent case reported by the New York Times suggests that copyright and search engines may well be on a collision course. ('Do Search Engines Expedite the Theft of Digital Images?' at http://www.nytimes.com/2001/09/06/technology/circuits/06IMAG.html ). In this case, a photographer, Leslie Kelly, sued an image search engine, Ditto.com, because of its practice of making thumbnail copies of images that it indexes and reproducing them as part of the search results it generates. "Search engines take the work of artists, photographers and others and then use them for their own commercial benefit," Mr. Kelly said. Kelly's point of view was rejected by a District Court judge who found that the use of Kelly's photographs was a prima facie infringement of copyright but was covered by the Fair Use doctrine (there would be no such saving provision in this country). Kelly then appealed the matter to the 9th Circuit Court of Appeals and there is no decision as yet. It will be interesting to see how the courts handle this issue as the search engines expand their services to do increasingly more with the copyright material that they index. Will they find that the sheer usefulness of such services outweights any possible harm to copyright owners? (After all, serach engines benefit creators by allowing their audience to find them). Or will the courts find that serach engines go too far in facilitating copyright infringement? >[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.   News | Membership | Contact Us