Interested in issues relating to education and copying?

A few people I spoke to at the Copyright and Cultural Institutions Conference on Friday were. Those people might well be interested in this new column by Canada's cyberlaw guru Michael Geist, where he talks about the brewing fight between copyright owners and educational institutions in Canada.

 
First thoughts on additional exceptions to consider in the TPM review by the LACA

So I've been giving some thought to this question of - apart from the exceptions specifically allowed by Article 17.4.7 of the AUSFTA, just what additional exceptions might be required? You may recall that it is only to this, limited question that the Terms of Reference of the LACA refer.

So I thought, well, how might we start thinking about that? And I thought - well, why don't we look at what the US has itself allowed as additional exceptions. That is at least a start. You see, in the US, when the DMCA was drafted, they created a process whereby every 3 years the Copyright Office would consider whether there were legitimate, non-infringing uses that were being adversely impacted by TPMs, and would consider whether new exceptions should be created to ensure an end to such adverse effects. There have been two such rule-makings already (in 2001 and 2003). The next is due in 2006.

And here's what the rule-makings have come up with. The list, by the way, comes from a recent, comprehensive article by Jane Ginsburg on the DMCA and its interpretation in the US:

1. "compilations consisting of lists of websites blocked by filtering software applications"
2. "literary works, including software and databases, protected by access control mechanisms that fail to permit access becasuse of malfunction, damage or obsolescence"
3. "computer programs protected by dongles that prevent access due to malfunction ro damage and which are obsolete"
4. "Computer programs and video games distributed in formats that have become obsolete and which require the original media or hardware as a condition fo access"
5. "literary works distributed in e-book format when all existing e-book editions of the work (including digital text editions made availbael by authorized entities) contain access controls that prevent the enabling of the e-books' read-aloud function and that prevent the enabling of screen readers to render the text into a 'specialized format'.

OK, so the first thing that strikes me about that list is how amazingly anal the drafting of these exceptions is. To use some words of Laddie, in a different context:

'Rigidity is the rule. It is as if every tiny exception to the grasp of the
copyright monopoly has had to be fought hard for, prized out of the unwilling
hand of the legislature and, once conceded, defined precisely and confined
within high and immutable walls.' (Laddie, 'Copyright: Overstrength,
Overregulated, Overrated' [1996] 18 EIPR 253, 258).

Fortunately, it seems to me that while the US Copyright Office, responsible for drafting these exceptions, might have taken the view that its mandate was limited, the mandate given to the Legal and Constitutional Affairs Committee is a broader one. The only real constraint is that exceptions must be consistent with the FTA. Being a Parliamentary Committee, it is appropriate that the Committee be prepared to exercise its law-making power in ways the US Copyright Office might refuse to do. This is not an administrative process - this is Parliament deciding on the proper scope of the law for Australian purposes.

The second thing that is striking about these exceptions is the number of them that are concerned with malfunction or obsolescence of technology (Ginsburg comments on this too, at page 23 of her paper). 2, 3, and 4 are all to do with this issue.

That's really interesting, because it just so happens that when I was asked about the TPM review at the Copyright and Cultural Institutions Conference on Friday, the question that was asked of me was basically this: what if the technology goes out of date? Are there exceptions to allow circumvention of old, out of date, or malfunctioning technology?

It would probably surprise many to realise that the need to circumvent because of malfunction or obsolescence of TPMs was not one of the original exceptions drafted into the US DMCA. They have suffered the consequences, having to have this matter put forward in both reviews by the Copyright Office. Let's hope that might be one of the exceptions considered by the LACA. Remember, too, that while in Australia we have (like the US) to review our exceptions periodically, we are not required to make those exceptions expire (unlike the US)!

There are two exceptions created by the US Copyright Office which have nothing to do with obsolescence. The first (number 1 above) is all about filtering/censorship technology. That's a very American concern, but one which could also end up being live here. The last exception really concerns issues for disabled people (something mentioned in the LACA terms of reference, by the way).

 
That's a different marketing campaign - USPTO hopes to enlist bloggers to spread the word

Received an email from the USPTO today. First paragraph refers to me as a "blogger and online opinion leader", according to the USPTO. Oh, yes, flattery will get you everywhere. So of course I read on...

What the USPTO is doing is launching a website, which it describes as being designed:

'to help small business owners protect their intellectual property from overseas piracy and counterfeiting. The new online resource is part of the nationwide www.stopfakes.gov awareness campaign to help educate small business on intellectual property protection. For such issues as patents, trademarks and copyrights, the Web site will provide information to help small businesses, home business owners, inventors and other entrepreneurs decide when, where and how to file for intellectual property protection.'

And they want bloggers to help publicise it.

Interesting choice, though. I mean, it's one thing to say - well, let's tell the IP bloggers what we are doing. It's quite another to think that it will help to use IP bloggers to promote a website designed for small businesses. How many small business proprietors have time to consult IP blogs (let alone obscure Australian IP law ones)?

 
TPMs - how the Oz-DMCA Review will work

Last week, a review was announced dealing with the drafting of Australia's new anti-circumvention laws. For those who joined us late, basically, anti-circumvention laws are laws which seek to control how people interact with technologies used by copyright owners to control use and/or access to copyright-protected material. We have to draft new laws, to replace the current law in s 116A of the Copyright Act, because of the AUSFTA, Article 17.4.7. Article 17.4.7 is based on the US law, the DMCA. As I did with the fair use inquiry, I'm creating a side-bar on this issue where I'll put useful links to my posts relating to this stuff.

So we've all had a chance now to look at the Terms of Reference on TPMs. So what's happening, and how is this all running?

The important thing is that the review by the Legal and Constitutional Affairs Committee of the House of Representatives is, apparently, a narrow one. They are dealing with just one question: that is, what exceptions are required in addition to those exceptions specifically allowed by the AUSFTA. What kinds of things might we be talking about here? Well, they would include:

• exceptions for educational institutions, libraries, archives and galleries beyond the ability to circumvent to make 'acquisition decisions' (deciding whether you want to buy something or not)
• exceptions for overcoming region coding or making legitimate use of legitimately purchased copyright materials (to the extent that an exception is needed here)

By limiting the Terms of Reference to the question of additional exceptions, the LACA is left out of a number of other, important issues in the drafting of the Oz-DMCA, including specifically:

• What ‘counts' as a TPM
• What counts as a circumvention device – what technologies won't be allowed to be distributed and/or used?
• How will the exceptions actually allowed under the AUSFTA be drafted?

It would seem that there has been a decision that these matters are too technical/difficult for discussion in the LACA. They are instead being dealt with by the Attorney-General's Department. This of course is going to make it difficult to draft a sensible submission to the LACA on exceptions - how do you draft a submission on exceptions when you don't know what the exception is to?

On the other hand, the LACA is a lay-person/generalist Parliamentarian committee. This will impact on the nature of any submissions to be made to the committee. From our experience in the FTA discussions, this stuff is hard to explain.

People contemplating making a submission have to think about what activities they need to be able to do which might be impacted by TPMs. That should be the upfront thing in any submission. It will be most convincing, and is most likely to elicit a response.

To the extent that those activities wouldn't (or shouldn't) be a breach of the Oz-DMCA provisions, that is a matter for AGs, who will no doubt be monitoring any submissions made to the Committee.

Happy submission drafting!

 
Tim Minchin wins best newcomer

Woohoo! Australian Tim Minchin has won best newcomer at the Edinburgh Comedy Festival.

This is very cool. I completely randomly saw Minchin at the Melbourne Comedy Festival. Randomly because I was handed a free ticket at the Town Hall when looking for something to see. And I raved at the time about how good he was.

 
A couple more matters coming out of the Digitisation Conference

My last post mentioned the Copyright, Digitisation and Cultural Institutions conference which happened on Friday at the State Library of Victoria.

I wanted to make just a couple of brief comments on some of the discussion that went on at that conference, as I experienced it.

The first, interesting thing about the conference, I thought, was the tone and discussion of the issues. A few themes emerged from the discussions, presentations by library and museum people, and from the research which Andrew and Emily have done:

1. Libraries, galleries, museums and archives (the cultural institutions) are very conscious of the need to respect copyright, particularly, the copyright of professional artists and authors who seek to make a living from copyright law. Copyright compliance which ensures remuneration to professional artists is not resented.
2. The issues are hugely complex - Jane Anderson gave what I thought was a really interesting presentation on the indigenous issues to do with access, copyright, and respect for rights.
3. Nevertheless, copyright law compliance is a very significant issue and burden for libraries, galleries, museums and archives. It sometimes stands in direct opposition to the mission of the cultural institutions of facilitating, and promoting access to the public.
4. There are striking examples where copyright imposes unnecessary burdens. These include (a) where the material is personal archival material from long ago (diaries, etc) where no author can possibly be seeking payment, or (b) where the rules impose extra, unnecessary work (such as requirements that digital copies be destroyed after use, only to be remade later on).
5. There was a sense that copyright is one of a number of issues that mean cultural institutions are finding it hard to move forward. Other issues include budgets - including budgets for copyright compliance. According to the cultural institutions, governments do not seem to understand the extent of the increase in burden imposed by copyright - budgets have not been adjusted to recognise this issue and the need for more staff time to be spent on such issues.
6. On the other hand, the cultural institutions are finding ways to move forward practically. Accommodations are being found. In some cases, risks are being taken and things are just being done.

So much for the summary of the main themes. Two things I found particularly interesting:

• hearing what people are doing and trying to do in terms of providing online access to their collections. Very cool stuff happening!
• some of the 'byproducts' of copyright were interesting - for example, the effect on the 'balance' of websites. Websites of many of the institutions are not representative of the institution's collection because of copyright issues. That is interesting, because it means that the information provided to people who don't attend in person is in a sense biased by the burdens of copyright compliance.

And then there was the little denoument at the end of the day. The last questions of the last session were from two government people - Simon Cordina from DCITA, and Gabrielle Mackey from the Attorney-General's Department. For people interested in the law reform process, what they said was interesting:

• Simon Cordina commented that the government was hoping to wrap up the Digital Agenda Review by the end of the year. Of course, there's a lot of us who thought that was done about 18 months ago with the presentation of the report by Philips Fox. According to Simon, however, some matters are still open. In particular, the operation of the library/archive provisions is still at issue, and still open to comment.
• Gabrielle Mackey commented that she was trying to pull together some of the fair use/fair dealing stuff over the next month or so. The comment was that we can expect something in that space around the end of the year.

Interesting times.

 
Copyright and Cultural Institutions: Digitisation Guidelines.

Emily Hudson (IPRIA/CMCL) and Andrew Kenyon (CMCL) have been working, for the last 18 months or so, on a big ARC-funded Linkage Project with various cultural institutions. They've gone and talked to lots of libraries, galleries and archives about how copyright law affects them, and they've come up with guidelines for working with copyright for the sector. It's a really interesting project - and for some more discussion of the findings, look at their working paper here. The project also contributed to the CMCL/IPRIA submission in the fair use/fair dealing inquiry.

The guidelines are being launched today at a conference at the State Library of Victoria.

What's more, the guidelines are available under a Creative Commons (No Derivs. Non-Comm. Attrib) License.

Get your copy of the long form guidelines here, and the short form here.

 
Hmmmm...

So some of the Australian Linux people have been going to this website where you can get your name as a cyborg. So most of the Linux people seem to have names which designate them as being destructive, or assassins, or exploration devices.

So what's mine?



As my colleague said - it must be rigged.

 
More on the TPM/DMCA review: SUBMISSIONS BY 7 OCTOBER 2005.

Just realised that there is even more information out there on the House Committee's website, including:

• The terms of reference
• A background paper

SUBMISSIONS ARE DUE BY 7 OCTOBER 2005.

 
Copyright Society - Symposium

The Copyright Society and Australian Copyright Council have announced the line-up for their biennial Copyright Symposium. Details here.

 
Big Copyright News: the Anti-Circumvention (to DMCA or not to DMCA) Inquiry: It's all on!

Ever since the FTA was signed off last year, and particularly since the whole fair use inquiry started, the copyright-obsessed have been wondering - when will the anti-circumvention laws would be drafted, and how. Australia has until 1 Jan 2007 to bring into effect the anti-circumvention laws required by Article 17.4.7 of the FTA.

Anti-circumvention laws are the ones which make it illegal to 'circumvent' technological measures used by copyright owners to prevent infringement of copyright (although even that definition is controversial at the moment!). The most notorious example in the world is the US DMCA. Article 17.4.7 of the Australian FTA is modelled on the US DMCA.

Public announcement has been made. The Australian reports today that Attorney-General Philip Ruddock asked the parliamentary standing committee on Legal and Constitutional Affairs to conduct an inquiry in order to find activities that should be exempt from the new, tougher laws on breaking technological protection measures.

The list of members of the Committee is here.

According to the Chair, Peter Slipper,

the FTA allows a limited number of circumstances where circumvention is
permitted and that the committee would be looking for additional circumstances
in which to make exemptions.

I cannot seem to find either the public announcement or the terms of reference online yet. But here are some other links that people interested in the issues might find useful:

On the US DMCA, here are some sources:

• The DMCA (17 USC 1201)
• EFF's page on the DMCA
• A recent discussion on the DMCA and the Darknet
• Jane Ginsburg's (generally, a pro-copyright academic from the US) articles on the DMCA: here and here. Jane's work is interesting because, unlike many US copyright academics, she is in favour of stronger copyright and, while she had some early criticism of the DMCA, has more recently said that things are working ok. She provides the 'other side' on this debate.

On the Australian version (the Digital Agenda Act):

• Section 116A of the Copyright Act 1968 (Cth)
• My general background explanation and description of the 'state of play' in Australia on my Internet Law subject page
• The Digital Agenda Review Report - report after 3 years of operation of s 116A, done by Phillips Fox
• My article with Emma Caine in the Internet Law Bulletin ((2005) 7 Internet Law Bulletin 121-126 ) - sorry, not online
• My two submissions to the Senate Select Committee on the FTA, which look at the anti-circumvention provisions: here and here.
• The Linux submission to the Senate Select Committee
• Rusty Russell's submission and supplementary submission
• My article on the Sony v Stevens litigation in the Sydney Law Review (really just on the current law)

Now all we need is for the High Court to hand down its judgment in Stevens v Sony in the middle of it all!

 
Interesting comments on my last post and on my website about open source and 'open content'

Stepped on a bit of a hornet's nest by offering up, for general comment, a website I put together for Internet Law this semester, which (inter alia) tries to offer a categorisation/discussion of open source and 'open content'. I have to use scare quotes now on that last term - it is clear that it is highly contestable. I note, however, that I'm really not the only one using this terminology of open content - Peter Suber for example refers to open content licensing to refer to such things as Creative Commons. But if there's debate, it's worth exploring the meaning and appropriateness of the terminology.

[oh, by the way, yes, I know my comments facility is abysmal. But I'm
not technological enough to fix it myself, or move to a better system than
blogger - don't know how to do that without losing all the archives and
stuff. So I'm making do.]

This debate is a good thing - some of the issues being discussed are part of stuff I'm exploring in a paper I'm giving at Michael Geist's upcoming Australia-Canada IT/IP Law Conference, so it's like a whole feedback loop that I'll benefit from.

Interesting issue coming up in the comments is this: is it appropriate to try to offer some general, overarching, collective term for the following phenomena:

• open access journals: like BMC Biology
• open access repositories: open databases or repositories of research publications like SSRN
• Creative Commons
• AEShareNet

On my website, I've used the term 'open content' - although with strong statements that the 'degree of openness' differs depending on context, and the kind of content involved.

Brendan Scott disputes the term, and indeed, disputes whether there is an overarching term.

I'll be debating this in class with my students, but any other thoughts on the issue are welcome.

 
Explaining open content and open source

I've spent a bit of time lately setting up a website as part of the Internet Law subject I teach, trying to put together, and explain the basics of the open source and open content movements. The aim is to introduce each to students studying law, who may or may not have studied copyright, but who get how law works generally (they're 4th/5th years) to these phenomena, looking at:

• what lies behind/motivates the open source, open content and open access movements;
• what open source is, and what open source licenses do;
• what open content is, and what some of the open content licenses do
• what might be some of the differences between these different, but related 'movements' or phenomena.

The open source/open access website is here; I'd welcome any comment.

update: I've already made some corrections/additions to the site as a result of some comments. Fantastic! Welcome any additional comments at any time...

 
Patenting business systems in Australia - and why they may not be patentable? an update

On Monday, I blogged about a rather interesting patent judgment from Branson J, on appeal from a Patent Office decision about business method patents (those dreaded beasts accepted in the US, controversial in the EU and currently the subject of a tousle in Australian patent law circles).

The case has certainly attracted a little flurry of interest - not surprisingly. Two notes from people much more learned than myself:

• Warwick Rothnie has a much more expansive discussion than mine here,;
• David Clark from Blake Dawson Waldron has a note on the case here.

 
Science Week!

I know that formally it is not something I would usually blog about, but I just thought I'd mention it's Science Week and there's all kinds of stuff on.

Last night I went to a 'Fresh Science' thing at the Redback Hotel in North Melbourne. A whole bunch of young/beginner scientists had to explain their work, either:

• in the time it takes for a sparkler to burn down; or
• in Haiku or Limerick form.

I learned a lot about lungfish and their amazing vision (that was the fresh scientist at my table), but I also learned about cool stuff like the development of smarter sheep, chasing box jellyfish around the coast, fake eyes and even digging up rubbish for the carbon (!). I think they're doing some more stuff in Melbourne so keep an eye out. Or go to something else. Or something...! Website with all the events here.

 
The ABS wants to build "Google for Stats"

According to today's Australian, the Australian Bureau of Statistics is building a single service delivery channel for access to every piece of statistical data held in public databases nationally (de-identified, of course).

As Keanu Reeves would say: Woah.

 
Interesting little patent judgment from Branson J in the Federal Court

Here's an interesting one: a judgment from Branson J regarding an order made by the Patent Office revoking an innovation patent.

What's interesting is that the case looks pretty much like a pure business method patent. The patent was for:

'a method for structuring a financial transaction, the purported effect of which is to protect an individual’s assets (presumably against the lawful claims of the individual’s creditors)'

And the issue was whether such a method was capable of being the subject of a patent. Like the Deputy Commissioner of Patents, the court decided that the subject matter claimed in the patent was not a 'manner of manufacture' - in other words, the invention was not the proper subject matter for a patent.

Unlike the only other previous Australian judicial consideration in the 'business method' context, Catuity, this case does not involve an implementation in hardware/software (Catuity was all about smart cards).

There's been a bit of discussion of this issue at the Patent Office level in the recent past. In Re Innovation Patent No 2004100848 in the name of Peter Szabo and Associates Pty Ltd [2005] APO 24 (‘Szabo’), Deputy Commissioner of Patents Herald decided that Australian patent law required a 'material element' for there to be patentable subject matter:

'The purpose of s.6 of the statute of Monopolies [is] to encourage development in the fields of science and technology. To be a manner of manufacture an invention must contain some material element that relates to science or technology. This might occur as a result of the application of a discovery of a law of nature, or a principle of science. It might be by way of creation of a new device, chemical entity, electromagnetic field or other entity, or related processes. Or it might make use of some device or entity for some purpose. Failing this, such an invention cannot be the proper subject of letters patent according to the principles which have been developed for the application of s.6 of the Statute of Monopolies.'

In that case, which concerned a method for implementing a 'reverse mortgage', the Deputy Commissioner held that there was no 'material application of science or technology', and hence no patentable subject matter.

Branson J discusses, but does not fully endorse this reasoning. According to Branson J:

'It may be that a principle has been developed for the application of s 6 of the Statute of Monopolies that patent protection is only available in respect of inventions which reflect scientific or technological developments. I interpolate that if a principle so expressed has been developed it may give rise to debate as to the true boundaries of science and technology; for this reason the principle may prove to be of little more assistance than the presently accepted dichotomy between useful arts and fine arts. '

That much I follow. Justice Branson wouldn't be the first to criticise the Szabo reasoning: BDW's David Clark has told our patent office, IP Australia that it should 'get with the times':

'In this era of of knowledge-based economies and globalisation there is a strong argument that any prohibition on business method patents would be short-sighted. ... It is important that the Patent Office does not set out to create new laws in excluding business method or system patents.'

What I don't follow is where Branson J goes next. Her Honour offers two reasons for rejecting the patent as being not patentable subject matter, and the first is a real doozy:

'The Deputy Commissioner did not think that there could be any argument about the invention the subject of the Patent being of economic utility because of the number of financial advisers in society charged with looking after their client’s assets. This was, in my view, to adopt the wrong approach to the question of whether the method has ‘value to the country in the field of economic endeavour’ within the meaning of the above excerpt from NRDC. The economic utility identified by the Deputy Commissioner is not a utility of value to the country; it is a utility of value only to those whose assets are ultimately protected – and possibly to their professional advisers. The performance of the invention will not add to the economic wealth of Australia or otherwise benefit Australian society as a whole. For this reason, in my view, the invention the subject of the Patent is not a proper subject of letters patent according to the principles which have been developed for the application of s 6 of the Statute of Monopolies.'

Say what? It won't contribute to Australia's economic well being therefore it's not patentable? How is that a certain standard? How is that to be assessed? (As a colleague commented - so Viagra does contribute to Australia's economic well-being....?)

The second reason is slightly less disturbing:

'the law of Australia assumes that the public interest is served by individuals paying their debts as and when they fall due. ...The invention of a ‘method for protecting an asset owned by an owner’ within the meaning of claim 1 of the Patent is thus the invention of a method by which the owner may be insulated from the operation of laws intended to serve the public interest. In my view, this is an additional reason why the invention the subject matter of the Patent is not a proper subject of letters patent according to the principles which have been developed for the application of s 6 of the Statute of Monopolies. ...The social cost of conferring on the invention the protection of a patent would therefore not be counterbalanced by any resultant benefit to the public.

The funny thing is, I thought that the original reason given by the Patent Office for revoking the innovation patent was reasonably sound:

'The invention resides in the law of Australia. That law is the creation of Parliament, and of the courts through common law. At one level one could say that all laws are "artificial" in that ... they are the creation of Parliament or of the courts. Beyond that, the law must be taken as being a deliberate intention of the legislature to provide governance of the population at large. I think it must be taken that the legislature has enacted the law in full knowledge of all its consequences, and in particular the interaction with other laws of the Commonwealth, including the common law.
...
Furthermore, the law is the foundation upon which our society is built ... I do not believe that it is open (or proper) for the Commissioner of Patents to grant monopoly rights over certain aspects of Australian law. The law is for the populace at large; it is not for the use of one individual to the exclusion of all others who desire to follow the law.’

I still can't work out why Branson J didn't just affirm that ground, and avoid all the messy business method patent-y stuff completely. But maybe I'm missing something...

 
Cultural interaction and the future of the book

''The light of the disk is endless
like the light of the disks in the sky, sun and moon.
With a single push of our finger on a button
We pull up the shining gems of text.'

Yes, this is how people feel when they visit this blog.

Just kidding.

This is (according to Boing Boing) an excerpt from a poem written by a Tibetan monks in praise of digital materials. Some Tibetan monks are now working on laptops, transcribing text and burning DVDs in order to catalogue, preserve, reproduce and distribute their mystical books.

 
Australia has no iTunes store

Which, as I've noted before, means that an overwhelming majority of uses of iPods by Australians (and there are a lot of iPods in Australia) involve copyright infringement: something that the current fair use review might (and I repeat, might) do something about. I've banged on before about the way that the position here in Australia contrasts with that even in the (massively copyright-protective) United States; as Warwick Rothnie has noted, now even in Canada the Canadian equivalent of ARIA has come out and said they won't pursue anyone for format shifting legitimately purchased CDs onto their computers and MP3 players. This is so even though the result of the recent refusal by the Canadian Supreme Court to hear a private copying has had the 'unintended consequence' of leaving people who legally acquire music and then copy it to their hard drives or portable devices in a "legal grey zone".

Yup, private copying is considered OK in the US and in Canada (whether as a result of law or the industry's attitude), here in Australia, we are still lawbreakers. Great, isn't it.

One of the arguments sometimes made in the context of copyright law reform is that if we change the law to make it more generous to users, then copyright owners won't invest in Australia, they'll nick off overseas with their money. Or they will just stop being creative and go invest in other (presumably more remunerative) things. I don't know, like financial services or tourism or something else.

Now, let me make one thing clear. I am in complete agreement that if we got rid of copyright altogether we would lose our creative industries and a lot of very creative people would definitely suffer. We should have copyright. We should even have the option for people to rely on strong copyright protection, if they want.

But, I'm skeptical of the extension: that copyright good, more copyright better, and that any weakening of copyright law will lead to massive problems. Not every strengthening of copyright law will lead to less 'piracy' and more money to artists. Not every weakening will lead to industry collapse.

And, more importantly, wrinkles in our stronger copyright laws, coupled with the fact that we are a small market, may even be holding back the introduction of technology for delivery of content in Australia: it seems to me that this is backed up on the current evidence in Australia.

Let's look at that evidence.

Strong digital copyright laws: stronger, in fact, than many countries.

But.

No iTunes store.

Little by way of Personal Video Recorders (or Digital Video Recorders), unlike the United States where TiVo has been a phenomenon for long enough for a plot line in Sex and the City to be built around it. Foxtel's IQ system seems to be a fairly pale imitation of the fully-featured DVR I'd like to see. And even many uses of that are probably infringements of copyright.

Australia has strong, enforceable copyright laws. And we are lagging behind in the introduction of technologies for enjoying content. Why is that?

In the case of the DVRs, it is partly, at least, about the differences in our laws. DVRs must have program information to be fully functional. But broadcasting organisations own copyright in that information, as a result of the stronger protection for compilations of fact in Australia: a result of our phone book decision, Desktop Marketing. And they can refuse to license the program info, standing in the way of DVR introduction. It may also be about the fact that personal copying is illegal, which adds a wrinkle to the legal tangle facing anyone who wants to enter the market with such technologies. Who knows: even Foxtel IQ might arguably have some copyright issues. Here, then, stronger copyright laws can stand in the way of certain innovations.

In the case of iTunes, however, I don't think it's about that. If the speculation gathered at explodedlibrary.info is anything to go by, the Australian situation here is just a casualty of the competition or problems between Sony and Apple, played out on a global scale. It does of course mean that copyright owners are losing moral high ground here by the day. Probably they don't care all that much, because a worst case scenario in current law reform debates, for them, is that Australia moves to a situation more like the US or other countries with their more generous individual user exceptions.

In neither of these situations does it appear that the failure to bring technologies for enjoying copyright material legitimately to Australia is about laws that are too weak. In one case, they may be too strong. In the other case, we are casualties of a global battle in a global marketplace.

Sigh.

By the way, I'm happy to be proved wrong - if you think any of the speculations/points above are false, well, let me know. Happy to correct at any time.

 
Important enough to move to the front page, and out of comments

Commenter Jeremy points out that the IP Scholars Conference in the United States has put a whole bunch of brand new papers and work in progress online. IPKat notes the same thing.

If you're into IP scholarship at all, it's a bit of a treasure trove. Here are just some of the topics:

• The Limits of Empiricism in Patent Policy: Biotechnology Patenting from 1990 to 2004 (Adelman)
• Copyright on Catfish Row: Control and Compensation in Porgy and Bess (Arewa) (on the ways copyrights are exploited)
• Trademarks As Congestible Public Goods (Barnes)
• Copyright Dilution (Bohannen)
• Legal and Technical Standards in Digital Rights Management Technology (Burk)
• Fixing Fair Use (Carroll)
• False Positives and False Negatives: Explaining Antitrust and Intellectual Property Law's Divergent Approaches to Competition Policy (Cotter)
• UC v. Eli Lilly After Eight Years: An Empirical Study of the Impact of the Lilly Doctrine on the Patenting of Biotechnology and Chemical Inventions (Holman)
• Rules for Radicals: A “Politics” of Intellectual Property (Murray)
• Positive Examination: A Proposal to Improve Clarity, Predictability, and Certainty in the Patent System (Petherbridge)
• The Law and Economics of Fair Use (Sag)

And that's not even all of them.

Enjoy!

 
Blog licensing. Yes, it goes on.

So we've had what Rusty has called the 'Great Blog Licensing Frenzy', and it has continued even since my last post on the issue. Quiggin has commented on Non-Commercial/Share-Alike as the best 'default rule'. Rusty complains.

Rusty comments that blog licensing is much less important than software licensing. Yes. Yes. Too, too true. I'm going to quote myself again:

Regardless of what the little license is (and particularly since people have different ones), remember that fair dealing (or fair use in the US) still applies, ok? You are not limited to non-commercial, or no-derivs, or whatever other limitation some wacky blogger decides to put on it, provided your dealing is fair and, here in Oz, is for something like 'criticism/review' - which is a lot of what blog-copying is. Ok?

So just relax and don't get too caught up in the 'frenzy'. We don't want anyone losing an eye now.

There's something of the American-style 'Liberty and contract for all' about the whole licensing idea.

The truth is that we don't really need law here, I think. The little licenses are likely to matter, about as much as, oh, what I had for breakfast this morning. 99.99999% of what people would do with the stuff on this blog would be fair dealing. Anything else would just be stupid and infringement no matter WHAT license is put on it.

Ah, you say - but you license your blog under creative commons. Well, Yes, I have a creative commons license on the blog. The reason? Because it sends a normative message - along these lines:

'feel free to copy this stuff and pass it on. And oh, if you can mention where you got it, that would be really cool because I'm an academic and basically a self-promoter'.

And I'm just about happy with that message.

Rusty is right on this one. This matters far less in this context than it does for software licensing. My view at the moment is that the most important things to worry about in this space are indeed,

• code licensing (because code is functional and modular and you need lots of little bits together working on the same terms to create the right 'ecology'); and
• open access to research.

But maybe I'll be proved wrong in the end. Will be interesting to see.

 
I know I referred everyone to Geist's piece yesterday ... but ...

I just took a little stroll over to Michael Geist's blog today, and would like to refer people to this post. With private copying levies being at least discussed here in Australia, 'word from the trenches' (ie, Canada, where such a scheme was introduced relatively recently) are highly relevant. Let me quote:

In addition to the Supreme Court decision [letting stand a ruling that upheld the legality of the Canadian private copying system but rejected an attempt to apply it to digital audio recorders such as the Apple iPod]...the Canadian government plans to further constrict the rights enjoyed by consumers under the private copying levy. Bill C-60, Canada's copyright reform bill, includes a provision that allows the music industry to prohibit private copying on CDs that contain anti-copying technologies such as those used on the latest CD from the popular group Coldplay. ...Should this provision become law, Canadians would pay tens of millions of dollars in levy fees, yet they would be precluded from copying their CDs onto their iPods or, in the case of "copy-controlled" CDs, making any private copies at all.

If that were not bad enough, the millions of dollars collected through the levy does not appear to be making its way to Canadian artists. Although the levy has generated more than $120 million over the past five years, Canadian Private Copying Collective (the administrator of the levy) has only distributed about 25 percent of those funds.

Industry Minister David Emerson and Canadian Heritage Minister Liza Frulla have indicated that the government plans later this year to consult on the future of private copying. With few remaining supporters, even one-time private copying champion CRIA welcomed the Supreme Court decision, change is urgently required.

Geist's comments here echo comments in my working paper commenting on the private copying system: what we want to avoid is the worst compromise for Australian consumers: narrow private copying rights and yet new expense through a private copying levy. Either we go broader copying rights and a levy, or narrow copying rights and free exceptions. Paying for narrow exceptions would be, I think, something like the worst of both worlds. Paying for narrow exceptions is the kind of thing that Geist seems to be concerned about in Canada.

 
Directors' Copyright Report Published

The Senate Legal and Constitutional Legislation Committee has issued its report (pdf) on the Provisions of the Copyright Amendment (Film Directors' Rights) Bill 2005. In a fairly unspectacular report (to be expected, given that the bill is fairly unspectacular, although the Explanatory Memorandum is wondrously detailed), the Committee has recommended the passing of the legislation.

I do like the fact that the Committee recognise that:

'It is apparent that the Bill will have little practical impact on the Australian film industry or on investment in that industry.

I'm a little disappointed, however, that the Committee seems to be very little concerned about the complexity of the Copyright Act or the way in which the Act impacts on that complexity to little, or no purpose (ie, directors get no real rights at all). The failure of the Committee to acknowledge there is anything strange about enacting copyright legislation that grants no real rights at all, and is, in that sense, almost purely symbolic, is a real shame I think.

 
Submissions in the Attorney-General's Fair Use/Fair Dealing Inquiry: I've been reading (updated!!!)

The other thing I've been doing lately (see my post below for other Weatherall news for the few interested!) is reading. I've been reading the submissions made in the Attorney-General's Inquiry into Copyright Exceptions (colloquially known as the Fair Use Inquiry, or the iPod Inquiry).

Some time ago I mused in blogprint whether the AG would make submissions available online. So far, this does not appear to have occurred. But quite a large number of submissions are available online, and I've been spending a bit of time trawling (and then reading). Here's a list of what I've found so far (once again, let me know if I've missed anything):

• Arts Law Centre of Australia (pdf)
• Australasian Performing Right Association (APRA) (pdf) (note: I have trouble getting a stable link for this submission. If the link there doesn't work, go to APRA's site, and then do a site search, for 'fair dealing inquiry'. This has always worked for me).
• Australian Copyright Council (pdf)
• Australian Digital Alliance (available here in rtf form)
• Australian Film Commission (pdf)
• Australian Information Industry Association (pdf)
• Australian Libraries Copyright Committee (available here in rtf format)
• Australian Subscription Television and Radio Association (ASTRA) Submission (pdf)
• Copyright Agency Limited (pdf)
• Copyright In Cultural Institutions Group (CICI) (pdf)
• Council of Australian University Librarians (available here in doc format)
• Dr Simon Evans (constitutional expert)
• Electronic Frontiers Australia
• IPRIA/CMCL Submission (mine) (pdf)
• Law Council of Australia (available here in pdf)
• Music Council of Australia (pdf)
• National Association for the Visual Arts (pdf)
• Professor Brian Fitzgerald
• Screen Producers Association of Australia Submission (pdf) (or get via their website here)
• Screenrights Pty Ltd (pdf)
• US Library Copyright Alliance (pdf) (interesting view on how US libraries use fair use)

No doubt I'm missing some here, but this is the collection as I've found it so far. This is what you get through a pretty directed search of Google, trawling through about the first 10 pages of results, plus looking at the websites of people I'd expect to make a submission.

What general comments can we glean from a quick reading of these submissions?

A few interesting things.

First, Kim's recommendations for fun reading

Two stand-out contenders here. I recommend:

• The CAL Submission. I think I need only quote the first three paragraphs of the preface to whet your appetite:

'One of the stories in the world’s most read book, The Bible, about the Tower of Babel reflects the ageless human challenge of communication breakdown. But from the moment peoples of different languages scattered across the earth, humankind has worked to break down those barriers.

From the wheel, to language interpretation and the written word, the printing press and the photocopier - and from the horse and cart to the combustion engine and air flight - we have succeeded in making our world, its people and the information and art we create more accessible.

The speed of change is rapidly increasing. While we know that new digital technology has already delivered a wonderful new era of access, the truth is we’ve only just begun.'

• The APRA Submission. Paragraphs 7.17 onwards comprise a little circumvention cookbook, providing wonderful detail of how APRA was able to circumvent various copy protection technologies using a three month old Dell computer.

Kim's favourite whopping 'three wise monkeys' submissions (see no evil, hear no evil)

In this category, the submissions which claim that there is no lack of clarity about the current fair dealing exceptions. To say that The Panel case is clear on fair dealing is to assume pretended blindness. Favourite contender here: the APRA/AMCOS submission, which claims:

'The most recent examination of the fair dealing provisions of the Act, the series of litigation regarding The Panel, shows no confusion or difficulty wiht the structure or content, or the interpretation, of the provisions'

Try explaining that to anyone who has had to read The Panel, or deal with four different judicial views on what counts as fair or not. I would like to just quote myself here on the final upshot of The Panel, if I may:

Those wishing to use little bits and pieces of others' work must be extra, extra careful now. Particularly about the language they use. Commentators using clips from other peoples' programs must be extra, extra careful. If you want to avoid copyright infringement you:

• must take extra special care that you engage in definite criticism of the material. Pass judgment. in bold with underlining. That will help you argue fair dealing
• but never, never, never call the excerpt a 'highlight' or a 'little highlight' of the program. That will make a judge think that you have taken a substantial part

General comments on the scope of the submissions

One thing which is clear is that the submissions range right across issues in copyright law. While the Issues Paper itself might be limited to private copying issues in substance, the submissions are not so limited: ranging across various issues including the statutory licenses, fair dealing, and general access concerns.

Many submissions (eg Screenrights, APRA) refer to the issue of the anti-circumvention laws and their interaction with any review of defences.

For or against fair use?

I've yet to see a submission which recommends 'pure' fair use (ie fair use replacing Australia's existing exceptions. Coming out in favour of a flexible exception we do see the Australian Digital Alliance, Electronic Frontiers Australia, the Council of Australian University Libraries, the Cultural Institutions (CICI) and to some extent IPRIA/CMCL (considering the advantages of such; leaving final evaluation to government. We also consider the option of broadening the language of existing exceptions).

Plenty of submissions against the addition of a flexible exception, including the Australian Copyright Council, the various collecting societies (CAL, Screenrights, APRA, Law Council, SPAA).

Without seeing the full range of submissions, however, it is impossible to evaluate which way the balance falls in terms of enthusiasm for exceptions. It is fair to say that the positions in the submissions I have seen reflect the historical attitudes of the relevant parties.

Arguments raised for the introduction of a flexible exception (fair use) include:

• would provide flexibility
• current exceptions are being under-used because of uncertainty regarding their scope
• flexibility is needed for technological competitiveness: current system is a deterrent to developments in technology facilitating uses not specifically allowed under specific exceptions;
• would encourage risk assessment rather than simple focusing on the definition of the fair dealing purposes
• existing flexible exceptions (such as the 'administrative purposes' exception allowed to libraries) have proved extremely useful in reducing transaction costs
• would direct courts attention to fairness, moving them away from an obsession with the particular specified purpose (eg, the Macquarie dictionary meaning of 'criticism/review)

Arguments raised against the introduction of fair use/flexible exception include:

• would lead to an increase in uncertainty (SPAA, ACC, Law Council, APRA/AMCOS); unclear how it would be interpreted (Law Council, ACC), and would hence lead to more litigation;
• would encourage further infringement of copyright as there would always be an arguable defence (SPAA)
• would have a 'cane toad' effect: short term solution becomes a long term disaster (CAL (see, I told you you should read the CAL submission. Memorable language!)
• adding such an exception to existing exception is just 'double dipping' (APRA/AMCOS)
• gives too much power to courts; power to define exceptions belongs in Parliament (CAL, APRA/AMCOS)
• Australian system as it is gives better access to copyright works, particularly through the libraries/cultural institutions exceptions
• fair dealing is flexible because new exceptions can always be introduced by Parliament (CAL)
• Fair dealing is ok for emerging technologies/markets because it provides clarity
• Fair use would be (or could be) inconsistent with Australia's international obligations (APRA/AMCOS, ACC, Law Council)

Give us parody! Arguments that (even without fair use) existing exceptions need to be broader

One of the most striking things about the submissions I have read is the number of them who argue that our law is not currently good for parody. Submissions arguing for either (a) a broader criticism/review exception, or (b) a new exception for parody, burlesque, pastiche and caricature (or similar language) include the Law Council, IPRIA/CMCL, the Australian Digital Alliance, CAL, ASTRA, EFA and probably others too. Notable about this is the fact that the submissions in favour of a broadening of the fair dealing here do not just come from the 'user side', but also from some parties who straddle the user/owner dichotomy in copyright: CAL, the Law Council, and ASTRA.

This may be because the parody area is one where Australian law is so manifestly narrower than most countries around the world as a result of decisions like The Panel. It's not just the US either - as we outlined in our submission, lots of countries have parody defences. It's just too easy a target for those opposed to copyright; it represents a manifest public interest (in humour, so very Australian!), and it would cost copyright owners little (they don't want to license such stuff, and they need freedom to create). It also suggests that the approach of the Full Federal Court in The Panel is just manifestly out of step with societal views of what is legitimate criticism/review.

Other problems with existing exceptions

In addition to the parody issue, there are a number of areas highlighted where there are problems with exceptions. These include the library/archives provisions (see IPRIA/CMCL, CICI, CAUL) and the provisions for disabled persons (see CAL). Several of the online submissions also cite a submission from DEST outlining the problems of complexity facing well-meaning and law abiding institutions. It is to be hoped that the Attorney-General listens, and does not confine himself to the area of private copying. Reform in this area is long overdue, as has been pointed out by numerous past government and public policy reports, summarised in this previous post of mine.

What about private copying?

ah, but what about the heart of the review - the private copying issue? Should we have free exceptions? A statutory levy?

Once again, the battle lines here are drawn. Well and truly drawn. There is no consensus on this issue. In summary, the usual parties line up in favour of remunerated private copying exceptions (ie, a statutory levy):

• The Australian Copyright Council
• Screenrights
• APRA/AMCOS

The Law Council think we have a 'legal anomaly', and that there are 'practical and political imperatives for reviewing the issue of private copying'. They suggest narrowly drafted exceptions, leaving open the question of whether such exceptions should be remunerated;

And others line up against such a levy:

• SPAA (would provide insufficient remuneration)
• CAUL, Digital Alliance (costs would overwhelm any benefits)
• AIIA (would interfere with markets for technology; would 'swim against the tide' of international legal development).

If you were going to read only two submissions on levies, one for and one against, I would read:

• The Screenrights submission in favour; and
• The AIIA submission against.

Oh, and you might also want to read Michael Geist's recent column talking about the Canadian system and its failures (to get perspective on those submissions which favourably cite the Canadian system). Geist's summary of the column is:

'The column argues that while in theory the private copying system provides consumers with the right to copy and artists with appropriate compensation for that copying, it is time to acknowledge that the system has failed and must be dramatically reformed or scrapped entirely.

The IPRIA/CMCL submission I was involved in writing reflects a view I've expressed in my working paper on the issue:

• any system should not leave Australians worse off than consumers in other countries (that means that if the exception is to be narrow, it should be free; if remunerated, it should be broader).
• the last thing we need is a really, really complicated and confined exception, especially if it is remunerated.

Concluding thoughts

I do not envy the people in the AG's department who have to wade through all this and reach sensible conclusions. All in all, the submissions I've read are long, detailed, and raise a lot of concerns. The submissions above are not the submissions of mad radicals but people of expertise and long involvement (although, as noted, some of the submissions are really quite bizarre in what they say). The weight and number of submissions indicates real concern out there, about a whole lot of different things.

It would be helpful, however, to have the submissions made available online. Without this occurring, it is going to be hard to argue that there is any transparency in the review and reform process. I had to do a lot of digging even to find the small sample above.

It would also be helpful, at some time in the not too distant future, to have some indication as to where things are going next. It's all very well to engage in this kind of summarising, but where do we go from here? Is there going to be a staged process? What of issues that don't get dealt with immediately - will they go on the backburner (have submitters wasted their time) or will we see a gradual process of dealing with all these issues? Will more research be done on any of these issues? I look forward to hearing more!

 
I'm back, and here's what I've been up to in the mean time...

Greetings all. Yes, it's me, back again to the blogging world. Regular readers know I do this: I blog madly for a while then take a bit of a break. One of these days I'll learn to do the right thing and put up a notice when I expect to be back, but there you go. I'm just not good at that.

Anyway, well might you ask, what's the excuse this time? Where have I been for the last month or so? What could possibly have kept me so busy?

Well, here's a taste:

• I completed the IPRIA/CMCL submission (pdf) (Weatherall/Hudson submission) (pdf here) to the Attorney-General's Inquiry into Copyright Exceptions (the Fair Use inquiry). It's a monster; I'll describe the contents in my next post about the copyright exceptions review.
• I completed a paper on the Performers' Rights provisions under Australian law. The finalised paper should be available online soon; I'll put up a link when it is;
• I've been finalising proofs for my patent enforcement paper, to come out in the Federal Law Review (original working paper here).
• I've been getting up to speed on "Cyberlaw" for my second semester course on the same. ah, back away from IP and back into privacy, surveillance, domain names, law enforcement and anton piller orders (as well as a bit of copyright of course!)

I've not been silent online - in fact, what I've been doing is constructing my Internet Law Subject Page. Now there are pages up with lots of links and information about:

• Content Regulation (Online Censorship)
• The Internet and Jurisdiction
• Domain Names and Internet Governance
• Open Access and Open Content Licensing (including Creative Commons).
• Privacy Online and Spam Regulation
• Law Enforcement, Computer Searches and Surveillance and
• Digital Copyright (File Sharing and Anti-Circumvention Laws).

There's some useful general legal information up on the sites, and I keep them updated, so let me know if I'm missing anything, won't you!