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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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September
2004
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[1] About this Publication
[2] The Chamberlain Group Inc. v.
Skylink Technologies Inc. - A Landmark Decision on DMCA Interpretation
[3]
Chamerlain v Skylink and the AUSFTA - Implications Down Under?
[4]BBC
Embraces Creative Archive
[5] Increasing Impetus for WIPO Reforms
[6]
Upcoming IP Events
[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/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]
The Chamberlain Group Inc. v. Skylink Technologies Inc. - A Landmark Decision
on DMCA Interpretation
The US Federal Circuit Court of Appeals has
upheld the district court summary judgement decision in Chamberlain v
Skylink. Skylink, a manufacturer of generic remote controls which can be
used to operate various models of garage doors, including those made by
Chamberlain, was held not to be liable for breach of the Digital Millennium
Copyright Act's anti-circumvention provisions.
Chamberlain argued that
Skylink's universal garage door opener was an illegal circumvention device
under the DMCA because it provided consumers with unauthorized access to the
copyrighted softward in Chamberlain's garage door openers. Unlike other DMCA
cases however, that have alleged the potential for copyright infringement,
Chamberlain did not allege copyright infringement per se. It did not argue that
Skylink's door opener gave consumers any new ability to read or copy the
company's code, but rather that by merely activating the garage door, consumers
were gaining a form of unauthorized access to the software. (The Skylink remote
used a clever hack to bypass the "rolling code" technology which enabled the
doors to open).
Last November a District Court judge rejected
Chamberlain's claim on the grounds that Chamberlain did not explicitly prohibit
consumers from using third-party remotes, hence the supposed access was not
"unauthorized." Chamberlain appealed.
The Appeals court decision agreed
with the District court ruling, but also went further, finding that a device
has to facilitate copyright infringement to fall under the ambit of the DMCA.
The Court held that the DMCA does not create a new property right for copyright
owners, and that a strict construction of the statute would lead to absurdities
(as many of the DMCA critics have argued).
The Appeals court held that
in order to be impose liability on an accused circumventor, the copyright owner
still needs to show that the circumvention of its technological measures
enabled unauthorized access to its copyrighted software. In this case,
Chamberlain was not successful in showing any connection between Skylink's
accused circumvention device, and the protections provided by the Copyright
Act.
'A copyright owner seeking to impose
liability on an accused circumventor must demonstrate a reasonable relationship
between the circumvention at issue and a use relating to a property right for
which the Copyright Act permits the copyright owner to withhold
authorization-as well as notice that authorization was withheld. A copyright
owner seeking to impose liability on an accused trafficker must demonstrate
that the trafficker's device enables either copyright infringement or a
prohibited circumvention. Here, the District Court correctly ruled that
Chamberlain pled no connection between unauthorized use of its copyrighted
software and Skylink's accused transmitter. This connection is critical to
sustaining a cause of action under the DMCA. We therefore affirm the District
Court's summary judgment in favor of Skylink.'
Extract from
Judgement; US Court of Appeals for the Federal Circuit, Chamberlain v
Skylink.
[3] Chamberlain v Skylink and the AUSFTA - Implications
Down Under?
Discussion of how to interpret what constitutes a
technological protection measure in the US may become very relevant in
Australia within the next two years.
The AUSFTA will require us to
strengthen provisions on TPMs in the Copyright Act so that they are similar to
those in the US. Australia will have 2 years from the date of implementation of
the AUSFTA to do this.What precisely constitutes appropriate implementation
pursuant to the AUSFTA however is arguable.
Presently in Australia, the
definition of TPM only covers measures which prevent or inhibit copyright
infringement. In the US however, the definition of TPM covers measures which
effectively control access to copyright material as well as measures that
effectively protect a copyright owner's rights. Therefore, the current
Australian regime only protects measures designed to prevent or inhibit
copyright infringements (the second type in the US). We have no equivalent for
the first.
In both Australia and the US, sale and other commercial dealings
in products or services which are designed to circumvent a TPM, or which have a
limited commercially significant alternative use, is prohibited.
The
effects of broadening the scope of the TPM provisions in Australia has been
noted by various commentators; a definition of TPM which includes measures that
control 'access' effectively provides copyright owners with rights which
significantly broader than currently provided by the Act, and which are similar
to those of patent holders.
Whether the AUSFTA requires us to adopt a
definition of TPM which is the same as the US definition will be an important
issue for the Australian Digital Alliance when implementation legislation is
being drafted in relation to this. The Chamberlain case (discussed above)
provides some relief, however there is little doubt that copyright owner groups
will argue for a broad definition which will further constrict the use of IP.
The ultimate question will be one of what the AUSFTA requires from
Australia.
[4] BBC Embraces Creative Archive
The BBC will
next month oversee the launch of a new copyright licence which will enable
users to upload hours of BBC footage to watch and to reuse in non-commercial
projects.
The BBC says that the project, named the 'Creative Archive'
is possible because of the BBC's unique position as a publicly funded
broadcaster, with an obligation to make its products as free and accessible as
possible.
Access to the BBC Creative Archive will be based on the Creative
Commons model, which proposes a middle way to rights management, as opposed to
the pure public domain or the reservation of all rights.
The BBC will
utilise the internet to release audio visual content for viewing, copying and
sharing but with some rights reserved, such as commercial exploitation rights.
So, in the case of audio visual material, the public are allowed increased
access but the exploitation of the same material in the commercial arena by
rights holders is protected. The US Creative Commons experience suggests that
this model can benefit rights holders by increasing the size of the market for
their work.
The Creative Archive initiative also has broader public
service ambitions to pioneer a new approach to public access rights in the
digital age. BBC Director, Paul Gerhardt explains: "We want to work in
partnership with other broadcasters and public sector organisations to create a
public and legal domain of audio visual material for the benefit of everyone in
the UK. "We hope the BBC Creative Archive can establish a model for others to
follow, providing material for the new generation of digital creatives and
stimulating the growth of the creative culture in the UK."
Criticism of
the BBC initiative has been noted by some. 'Anarchogeek' reported on its
website that the sampling license that the BBC is leaning towards, which
provides the right to take samples, is a right which should already be granted
under fair use. It further noted that the share-a-like clause is not
obligatory, so that users are not obliged to pass on the same rights to others,
which they benefited from under a CC license.
Chair of the Creative
Commons project and Professor of Law at Stanford University, Lawrence Lessig,
endorsed the project saying that: "The announcement by the BBC of its intent to
develop a Creative Archive has been the single most important event in getting
people to understand the potential for digital creativity, and to see how such
potential actually supports artists and artistic creativity. "If the vision
proves a reality, Britain will become a centre for digital creativity, and will
drive the many markets – in broadband deployment and technology –
that digital creativity will support."
[5] Increasing Impetus for
WIPO Reforms
There is increasing consensus amongst members that the
World Intellectual Property Organization (WIPO) should review its mission. A
number of developing countries, lead by Argentina and Brazil, have tabled a
proposal for a "development agenda", which involves stopping work on new
treaties that hike intellectual property protections, and redirecting the
agency to a range of initiatives more responsive to development and concerns of
WIPO critics. This was officially debated on September 30, 2004.
A copy
of the Declaration on the Future of WIPO, which discusses the problems with
WIPO, the proposal for a development agenda, and other reforms at WIPO, can be
viewed
online.
By the time of the General Assembly of the World Intellectual Property
Organization meeting on October 4, 2004, hundreds of nonprofits, scientists,
academics and other individuals had signed the "Geneva Declaration on the
Future of WIPO. The General Assembly agreed to adopt the Proposal for the
Establishment of a Development Agenda for WIPO offered by Argentina and Brazil.
This proposal was strongly supported by developing countries, as well as by a
large contingent of civil society who are in agreement that WIPO should focus
more on the needs of developing countries, and should view IP as one of many
tools for such development .
[6] Upcoming IP
Events
Unlocking Intellectual Property
Conference
18 & 19 November at the University of NSW in
Sydney
Co-hosted by AEShareNet, University of NSW, Baker & McKenzie
Cyberspace Law and Policy Centre.
The conference is concerned primarily
with discovering the value of intellectual property and exploring copyright
issues. It will include sessions on business models for publishing and
licensing, copyright clarification, new models for sharing and trading learning
resources, good practice exemplars, policy directions from legal and
educational perspectives and international developments in the
field.
Contact Information: admin@aesharenet.com.au
http://www.aesharenet.com.au
The Intellectual Property Conference
2004
16 November 2004 at Le Meridien Hotel in Melbourne
18
November 2004 at the Marriott Hotel in Sydney
Hosted by C M S Legal
Education Division who will offer 20% discount to ADA members.
The
conference is looks at the changing & growing area of IP including
e-commerce, on line publishing services, pay television, multi media
broadcasting and biotechnology. It covers the laws protecting IP including:
Copyright, trademarks, patents, designs, licensing, and trade
secrets.
Jamie Wodetzki, ADA Director, will be participating in a panel
discussion on 'The Direction of IP laws after the FTA in Australia - what
works? for whom? what needs to be changed?'
Contact Information:
george@chillimarketing.com.au or phone 02 9543 0499
[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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