Australia, the Clever Country

I think it is worth noting that Australians didn't only do well in the Nobel Prizes this year. All praise, of course, to Barry J. Marshall and J. Robin Warren, who received the Nobel Prize in Physiology or Medicine, "for their discovery of the bacterium Helicobacter pylori and its role in gastritis and peptic ulcer disease".

Australians also did well in the Ig Nobels this year, claiming:

• The Ig Nobel Prize in Physics: John Mainstone and the late Thomas Parnell of the University of Queensland, Australia, for patiently conducting an experiment that began in the year 1927 -- in which a glob of congealed black tar has been slowly, slowly dripping through a funnel, at a rate of approximately one drop every nine years; and
• The Ig Nobel Prize in Biology: Benjamin Smith of the University of Adelaide, Australia and the University of Toronto, Canada and the Firmenich perfume company, Geneva, Switzerland, and ChemComm Enterprises, Archamps, France; Craig Williams of James Cook University and the University of South Australia; Michael Tyler of the University of Adelaide; Brian Williams of the University of Adelaide; and Yoji Hayasaka of the Australian Wine Research Institute; for painstakingly smelling and cataloging the peculiar odors produced by 131 different species of frogs when the frogs were feeling stressed

At two prizes, Australians were second only to the Americans (with three). Honourable mention also to the New Zealander for holding up their end of the Australasian triumph:

• Ig Nobel Prize in Agricultural History: James Watson of Massey University, New Zealand, for his scholarly study, "The Significance of Mr. Richard Buckley’s Exploding Trousers."

 
Cleaning up the blogroll.

I had a bit of a spring clean of my blogroll today. In particular, I've included on the list only blogs that I genuinely keep track of - behold, Kim's regular reading. That means I've added a few links; some others have fallen off.

I wanted to highlight a couple of blogs I've discovered relatively recently too.

The first is the Cairns Blog. This one I discovered today. It has nothing to do with Queensland. 'Cairns' comes from the Cairns project, which refers to those piles of rocks people put on walking trails - as their site describes it, 'stone monuments to mark the path and collectively navigate new territory'. It's worth keeping an eye on, at least sometimes - particularly if you are interested in open content, open licensing, open source, and/or if you are interested in eDemocracy issues.

A key reason for keeping an eye on this blog, I think, is that you can keep up with posts by Beth Noveck. Professor Noveck (Associate Professor of Law, New York Law School) has a long history in information technology, e-democracy, innovation, and the relationship between technological design and civil liberties. She has a very impressive cv. I like to read Professor Noveck's stuff because she comes from a perspective that is not purely legally bound - she has what I think is an interesting broader perspective. And the Cairns Project looks kind of interesting to me - focused as it appears to be on developments in technology for collaborative work.

I've also added another link I should have added some time ago - to Professor Michael Madison's blog, madisonian.net. I go there for, well, interesting thoughts on some of the current issues in this space. It's not the standard news-reporting blog, but a source of some collected thoughts, and well worth the occasional visit.

 
Geographical indications and the Feta Case.

According to the IPKat,

'The ECJ has delivered its judgment
in the dispute over whether non-Greek undertakings can describe their cheese as FETA. The court has found that the term FETA is not generic for a type of cheese, and therefore is protectable as a protected designation of origin for a type of white cheese soaked in brine produced in a region of Greece. Contrary to the arguments of Denmark, France, Germany and the UK, the court found that, while white cheeses soaked in brine have been produced throughout the south-east Mediterranean and Balkan region, those cheeses have not been known as FETA.'

What do I think? Don't get me started. I can't quite go as far as Crikey, but frankly, if words like Feta can't be used by everyone, it's just silly.

 
Business Method Patents in the US - more developments (cross-posted at LawFont)

A little while ago I blogged about Ex parte Carl A. Lundgren, a decision of the Board of Patent Appeals and Interferences of the US Patent and Trade Mark Office (USPTO). In that decision, the Board overturned the Examiner's objection to the patent, holding there is no separate “technological arts” test in determining whether a process is statutory subject matter. The decision potentially broadened the patentability of what you might call 'pure business methods' - those not instantiated in 'technology' (like software or hardware).

This development in the US is relevant to a current debate in Australia, about the 'technological arts' type requirement in Australian law. That requirement has been used to reject 'pure' business method patents in Australia. The issue was discussed in the Federal Court decision in Grant, currently on appeal to the Full Federal Court. See my old post for more discussion.

Well, now, the USPTO has issued amended examination guidelines, in response to the Board decision. Patently-O has the discussion.

 
Copyright and the Constitution 2

While I'm on the subject of copyright and the constitution, Simon Evans, a colleague here at Melbourne, the other day pointed me to his submission in the fair use/fair dealing inquiry. It's an interesting read on some of the constitutional, rule of law and free speech issues raised by copyright exceptions - highly recommended. I've also added it to the list of submissions.

 
Copyright and the Constitution (crossposted at LawFont)

One of the passages in the recent High Court case on anti-circumvention laws (or the Oz-DMCA), Stevens v Sony which attracted a little bit of attention, even excitement from people I know the following part, from Justice Kirby's judgment:

[216] The provisions of the Australian Constitution affording the power to make laws with respect to copyright operate in a constitutional and legal setting that normally upholds the rights of the individual to deal with his or her property as that individual thinks fit. In that setting, absent the provision of just terms, the individual is specifically entitled not to have such rights infringed by federal legislation in a way that amounts to an impermissible inhibition upon those rights constituting an acquisition. This is not the case in which to explore the limits that exist in the powers of the Australian Parliament, by legislation purporting to deal with the subject matter of copyright, to encumber the enjoyment of lawfully acquired chattel property in the supposed furtherance of the rights of copyright owners. However, limits there are.
...

[218] To the extent that attempts are made to push the provisions of Australian copyright legislation beyond the legitimate purposes traditional to copyright protection at law, the Parliament risks losing its nexus to the constitutional source of power. That source postulates a balance of interests such as have traditionally been observed by copyright statutes, including the Copyright Act.'

But what do these passages really mean?

Beyond the Copyright power?

Is Kirby J trying to say that particularly nasty anti-circumvention laws - laws that prevented all access to copyright works without explicit permission, for example, would risk being held unconstitutional because they would be 'beyond power' - not supported by the Federal Parliament's power under s 51(xviii) of the Constitution to make laws with respect to '[c]opyrights, patents of inventions and designs, and trade marks'?

Surely that cannot be what he means? While I would agree that anti-circumvention laws are 'not copyright', but rather, 'paracopyright' - above and more than copyright in the way that they operate - the idea that they are beyond that section of the Constitution would be difficult to make, I think. Constitutional powers, as the High Court pointed out in Grain Pool of Western Australia v Commonwealth of Australia (2000) 202 CLR 479 are construed 'with all the generality which the words used admit' (para 16, citing R v Public Vehicles Licensing Appeal Tribunal (Tas); Ex parte Australian National Airways Pty Ltd (1964) 113 CLR 207 at 225-226). Disagreeing with the law or its scope doesn't take it outside the power:

if a sufficient connection with the head of power does exist, the justice and wisdom of the law, and the degree to which the means it adopts are necessary or desirable, are matters of legislative choice' (Leask v The Commonwealth (1996) 187 CLR 579 at 602)

If a law regarding circuit layouts (Nintendo Co Ltd v Centronics Systems Pty Ltd (1994) 181 CLR 134 at 160), and a law regarding Plant Breeders' Rights (Grain Pool of Western Australia v Commonwealth of Australia (2000) 202 CLR 479) are within the power, then paracopyright laws likely are too. As the court noted in Grain Pool, power under s 51(xviii) also includes 'power, as the legislation upheld in Nintendo demonstrates, to determine that there be fresh rights in the nature of copyright, patents of inventions and designs and trade marks' (Grain Pool, at [41]).

And then there's the external affairs power...

What is more, even if (and it's a big if, given the above) paracopyright laws were not within the Copyright power, they would likely fall within the external affairs power (s 51(xxix)). The WIPO Copyright Treaty includes Article 11:

Contracting Parties shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by authors in connection with the exercise of their rights under this Treaty or the Berne Convention and that restrict acts, in respect of their works, which are not authorized by the authors concerned or permitted by law.

As I understand it, we've not ratified that treaty yet (even though we are meant to, under the AUSFTA Article 17.1.4). The AustLII information indicates that we hadn't, as at August 2005, and the DFAT site doesn't say anything different. But I'm pretty sure we could, at a moment's notice. And I don't think any argument that our anti-circumvention law - either now or post-FTA implementation - 'goes beyond' what the WCT requires would fly, particularly if our law closely matches the US law and all the other countries that the US has forced into its model.

Nor, according to one of my constitutional colleagues here, would we be likely to be able to 'read down' the external affairs power using the copyright power - that would be contrary to long-established priniciples that the powers are read independently unless there is something specific to suggest a limit.

So, all that said, why these passages in Kirby J's judgment?

A matter of statutory interpretation?

Personally, I think that the key to what Kirby was saying lies in looking at (a) the material surrounding these passages, and (b) the journal article in the Media and Arts Law Review by Brian Fitzgerald, that Kirby J cites. The paragraph immediately preceding [216] is this one:

'Ordinary principles of statutory construction, observed by this Court since its earliest days, have construed legislation, where there is doubt, to protect the fundamental rights of the individual. The right of the individual to enjoy lawfully acquired private property (a CD ROM game or a PlayStation console purchased in another region of the world or possibly to make a backup copy of the CD ROM) would ordinarily be a right inherent in Australian law upon the acquisition of such a chattel. This is a further reason why s 116A of the Copyright Act and the definition of TPM in s 10(1) of that Act should be read strictly. Doing so avoids an interpretation that would deprive the property owner of an incident of that person's ordinary legal rights. '

And then in between the two paragraphs [216] and [218] Kirby J refers to the principle 'that fundamental rights will persist in the face of legislation said to be inconsistent with them "'unless there be a clear and plain intention' to extinguish such rights".'

In other words, what Kirby J's concerned with here is finding a reason to adopt a particular statutory interpretation - the narrow one, over the broad one (he has already said, earlier in the judgment, that he disagrees with the view of the Full Federal Court that the intended meaning is 'clear' on the history). He's not concerned with principles which will lead to a finding that laws are unconstitutional - he's concerned with principles that will justify him taking a narrow interpretation that he is not entirely comfortable with. I think that is as far as Kirby's judgment really goes.

This 'using fundamental rights to read down the statute' is something we also see in Brian Fitzgerald's article in the Media and Arts Law Review Article (March 2005). In that article, Brian makes arguments that broad readings of anti-circumvention law would 'not fit' with fundamental rights, and that that can be taken into account in construing the legislation. He argues that a narrow view fits better with principles about interoperability and fits better with 'fundamental liberty to enjoy private property'. These, along with the arguments about the legislative history that I have previously made, justify a narrow interpretation.

That is as far, I think, as the ratio of Kirby J's judgment goes. But could we go further?

A constitutional limit imposed by property rights?

Fitzgerald goes further than a mere statutory interpretation argument:

'...the right to hold property is a fundamental principle of democratic existence. In essence, a stable system of holding and recognising property entitlements is foundational to the workings of the Australian democratic system. The approach of the Full Federal Court ignores the pre-existing entitlements of the consumer who has lawfully acquired the PlayStation and the game accessory in favour of expanding the reach fo the exclusive rights of the copyright owner. This is very much a loss/gain scenario - a form of unjust enrichment - that may well fall foul of s 51(xxxi).'

Brian is making two points here I think. One is that broad anti-circumvention laws conflict - seriously conflict - with the ordinary property rights of other people. The rights that the government has been concerned about (and asserted would be protected in the Senate Select Committee on the FTA, and implicitly put into their Terms of Reference to the Legal and Constitutional Affairs Committee by including region coding as an issue) - rights for people to make legitimate use of legitimately purchased copyright material. Rights that Rusty Russell has been talking about too. This is a really important point, I think, and it needs to be made and made repeatedly. It's something that appealed to the conservative elements of Kirby J's thinking too - conservative in the sense of protective of property rights. It's an argument that takes us beyond touchy-feely lefty politics of the public domain, and makes us realise that copyright claims can interfere with others' property rights.

There is a second aspect to Brian's argument - that this interference with property rights may raise a constitutional issue under s 51(xxxi) of the Constitution. This is the constitutional provision that requires that when the Commonwealth acquires property, it must do so 'on just terms'. Kirby certainly doesn't entirely dismiss such an idea, with his footnote 163 which cites Lessig, and cites the very page where Brian makes the constitutional 'just terms' argument.

Do we really need to rely on constitutional arguments?

I'm a little uncomfortable with the 'clinging to constitutional arguments' approach that scholars and activists (and scholar-activists) sometimes adopt. For a long time in the United States, IP scholars have been pushing a certain line about the constitution, and constitutional limits on IP. Those arguments are centred around two things in the US constitution that are not found in the Australian constitution: a purposive copyright power (ie one that grants Congress power to make copyright laws, for a specific purpose), and a First Amendment right to free speech. Even in the United States, the constitutional arguments have been, for the most part, relatively unsuccessful. US Courts have often rejected 'free speech' limits (including on the DMCA in Corley), and famously rejected an argument that the terms of Article I made extension of copyright term unconstitutional in Eldred.

Surely, such constitutional arguments are likely to have less success here in Australia? The Australian constitution has neither of the elements which made the US 'constitutional limits on copyright' argument plausible. Of course, that is why Brian turns to the 'acquisition of property' argument. I can't help but think the argument is weak. Maybe I'm wrong. I'd be interested to hear others' views.

Personally, I'm inclined to think that the important point to take from Kirby J's comments is the affirmation that there are limits in copyright, there are reasons for those limits, and one of those reasons is that copyright interferes with peoples' property rights and their use of purchased materials. What the judgment of Kirby J - and indeed, the other judgments - highlight in Stevens v Sony is that we need to take a second look at laws that have that effect. And that claims by some commentators - that anti-circumvention laws are completely analogous to laws that make it illegal to break into a house to steal a book (arguments made most recently by CAL) - are just misconceived.

This doesn't have to be a constitutional argument. The constitutional argument is, inevitably, weak. It is actually an argument about the proper limits and principles of copyright law. To paraphrase/alter unashamedly some arguments made by Bowrey and Rimmer quite some time ago now,

'In touting [the constitution] as a superior body of law to [anti-circumvention law], and in developing the notion of [constitutional freedoms like property rights and free speech] ... an analysis of the status of more conventional copyright principles seem to have fallen by the wayside. Incontestable copyright concerns such as for the idea/expression dichotomy, substantial part, limited terms and fair use, can, of course, be related to a [constitutional] story. However they need not be. The apparent removal of these from current jurisprudence requires judicial account. Academic lawyers should be mindful of this conventional jurisprudential detail, and not allow it to be lost in the intellectual excitement of leading "emerging" jurisprudence, in a highly charged litigation context.'

The comments by the High Court in Stevens v Sony usefully remind us that there are limit inherent in copyright law. And I think there is plenty of reason to think that the government is aware of the limits - with their comments that they don't want to limit 'legitimate use of legitimate products'. The important thing, now, is to use this awareness - by the High Court, and others - to make sure that the laws are drafted right in the first place.

 
Must-read TPM Submission of the Day (crossposted at LawFont)

I don't have time to say much at this stage on the TPM submissions, made to the Legal and Constitutional Affairs Committee in the context of its current review. I'm reading through them, in the hope of producing a kind of concentrated summary as I did for the fair dealing review. I suspect there are many more yet to come onto the website. I've already commented on the CAL submission, of course.

However, I commend to interested people the ABC submission. In its discussion, the ABC makes it clear just why some exceptions are necessary, if we are to have an effective free media. The submission highlights the practicalities that sometimes intrude and that academics like me sometimes forget. In particular, the submission makes the explicit argument that:

Australian law must comply with the implied right to governmental and political discussion. Any law which protects TPMs but which does not permit an exception to allow free government and political discussion will not be appropriate and adapted to its purpose and will be unconstitutional.

This implied constitutional right plays a critical role in the media and is fundamental to the ABC meeting its charter.'

Interesting reading.

 
iTunes

Well, it's true. iTunes have finally launched their store in Australia. At Aus$1.69 a song, it looks slightly more expensive than the current US price of US$0.99 per song.

About bleedin' time. And still Sony have withheld their material. So still Australians don't have a full service download site for music. But it's an improvement on the situation prior to today. (update: perhaps I shouldn't be ungracious on day 1. Fair enough, Warwick).

 
The Economist on IP

The Economist has a special feature on IP. Unfortunately, we're all going to have to go out and buy it, because most of the articles are for subscribers only on the website. But I'll certainly be buying one.

The last few times I've seen an Economist article on IP, it's had a decidedly 'IP has limits' kind of ring to it - they even appeared to endorse, once, the Lessig proposal for dealing with copyright term extension. But this time might be different - the one article that is freely available summarises the issue thus:

This survey will argue that, despite [...] adjustment problems, the huge changes in intellectual property currently taking place in the IT sector will in time produce more efficient markets. But what do the IT firms themselves make of it all?

UPDATE: Rusty has some comments, pointing out where he thinks The Economist may have gone a little wrong-ish.

 
I could tell you, but I would have to kill you (crossposted at LawFont)

Ah, the government submission process. Having finally completed my submission on the inquiry into TPM exceptions being run by the Legal and Constitutional Affairs Committee, now I can't publish it until they decide to publish it. Shame really. I'll put up a link as soon as it happens...

Oh well, in the meantime, if you're starved for my views (as if!) there is the submission I made on the Attorney-General's review of the availability of Safe Harbours under Part V Div 2AA of the Copyright Act.

Huh? I hear you ask. This is the rather less publicised review being done by AG's, about whether it is that only Carriage Service Providers as defined under the Telecommunications Act should get the benefit of safe harbours, or whether availability should be extended more - and if so, how far. There was no press release for this review; the Issues Paper was sent to some stakeholders. It's discussed by Warwick Rothnie here and by me here.

The Safe Harbours are things we were required to introduce into Australian law following the FTA with the United States. The purpose of the safe harbours is that certain service providers (those providing hosting, caching, search engines, and general telco services), if they follow certain rules of behaviour, are shielded from liability for copyright infringemen - they can only suffer injunctions, not damages awards. The 'rules of behaviour' are things like having systems for take down of allegedly copyright infringing material, and having policies on termination of repeat infringers.

The benefit of safe harbours is that it provides certainty for businesses: follow the rules, you don't get done over in the courts. Moreover, it probably helps service providers to be slightly less risk averse - chances are, if there were no safe harbours, ISPs and others would still be taking stuff down which was alleged to be copyright infringing, but users would have no recourse.

When it re-wrote digital copyright law back in 2000, Australia originally decided against a safe harbour model for people like ISPs. Instead, they did two things:

1. They enacted specific defences, so that telecommunications or other facilities providers could not be held liable for copyright infringement 'merely because another person uses the facilities so provided' to infringe copyright; and


2. They 'clarified' the law of authorisation by putting in s 36(1A) and 101(1A).

The hope of the government was that a Code of Practice would be developed between ISPs and copyright owners to manage the issue. However, those negotiations have generally fallen apart and in the meantime, there have been lawsuits. What is more, under the interpretations of the law in Cooper and Sharman/Kazaa, authorisation is no more clear than it was, and the 'exceptions' in s 39B/112E have turned out to be pretty useless.

In summary, it has become clear that that system hasn't worked all that well, and has not provided clarity. In the Digital Agenda Review, plenty of comments were made also that the law was just too uncertain. As a result, the Digital Agenda Review recommended Safe Harbours of a kind.

So it was pretty inevitable that something along these lines would eventuate in Australia, although we may not have got the US model without the FTA.

The interesting thing is that when we enacted the AUSFTA into Australian law, instead of doing what the US and other jurisdictions have done, and provide safe harbours for 'Service Providers' (generally), we confined 'service providers' to those who are 'carriage service providers' under the Telecommunications Act. The effect of this was to prevent a lot of 'service providers' - like Universities, for example - and most search engines from being able to rely on the safe harbours if they wanted to. Thus this review.

David Lindsay, from Monash Law School, gave a great paper in Canada recently, at Michael Geist's great Comparative Australia/Canada IP/IT conference, outlining just how stupid the current limitation to Carriage Service Providers is. It was really amusing. David went, painstakingly, through the various definitions under the Telecommunications Act 1997, noting just how far you have to delve into the legislation just to start to make sense of the term. You could see the Canadians' jaws just dropping further and further, as David ruthlessly dissected the meaninglessness of the statutory somersaults. Beautiful, in a disturbing kind of way.

Anyway, my submission, though a pale imitation only of David's brilliant and surgical work, can be downloaded, from IPRIA's website, here (direct link to pdf), or go to the website here.

 
Wall Street Journal on DRM (via freedom-to-tinker)

As the Legal and Constitutional Affairs Committee hunkers down to think about DRM, they might like to take note of a column just published in the Wall Street Journal, on DRM:

'In my view, both sides have a point, but the real issue isn’t DRM itself — it’s the manner in which DRM is used by copyright holders. Companies have a right to protect their property, and DRM is one means to do so. But treating all consumers as potential criminals by using DRM to overly limit their activities is just plain wrong....
...consumers ... should be able to copy it to as many personal digital devices as they own, convert it to any format those devices require, and play it in whatever locations, at whatever times, they choose.'

Of course this is what some copyright owners are doing. Not all, but some. Think the way that Apple allows copying to multiple computers/iPods. Then think region coding for the opposite.

Ed Felten has a discussion.

 
I was just commenting to a friend the other day...

...how interesting it is that academics still get paid in alcohol (for speaking engagements). Now Quiggin comments on the same thing. I must say, I find it rather useful - I rarely have to buy wine these days when I go to a dinner party...

 
More experiments in scholarly publishing...

A little while ago I noted that the University of Chicago Law Faculty had a Faculty Blog. Interesting, I thought.

I think this new Yale Law Journal experiment (also via Jack Balkin) is even more interesting:

' The Yale Law Journal has started an innovative experiment in the traditional world of law reviews-- The Pocket Part. TPP is not another online law review, and it's not another blog. Rather it's an electronic companion to the regular editions of the Yale Law Journal, featuring shorter versions of articles from the Journal plus commentary by other scholars, along with a comments section so that still others can participate in the discussion. This is an excellent way to supplement the scholarly work of law reviews and I wish the editors great success. If The Pocket Part catches on, I predict it will change the way we think about law reviews and what one can do with them. In particular, TPP shows how you might turn a one-to-many medium published infrequently with high barriers to participation into a participatory medium that permits a continuous conversation and that is organized around scholarly work of the highest quality.

Way cool.

PS: not sure what a Pocket Part is? I didn't either until I studied over in the United States. In the US, many paper publications - like copies of the US Code, or textbooks - have 'pocket parts' - updates issued between new editions. They are thin soft cover publications which are inserted into a 'pocket' found in the published edition at the back. They are 'parts' inserted into the 'pocket' of the published work. Thus the name, 'pocket part'. In legal research classes in the states, we were told 'always look at the pocket part' to get the latest. Gotta love those lawyers for harking back to precedent and tradition.

 
No, it can't be true...

iTunes? In Australia? I just can't get my hopes up again...I couldn't stand the disappointment...

 
High Court refuses special leave in The Panel - reprise.

Interested in why/how the High Court refused special leave in The Panel case? Read Starkoff's post.

UPDATE: Warwick Rothnie has also commented at some length on the issue. (true confessions: not sure I agree with Rothnie's basic point here, which is that, in the end, substantial part is just a matter of fact/judgment. But while I think our law on 'substantial part' is now problematic for Part IV works, that's not the Full Federal Court's fault. That's the High Court's fault, for saying that 'quality' is relevant for Part IV subject matters. How do you judge 'quality' of non-original works, if not by the 'highlights' method used by the Full Court?).

 
Fels and Brenchley in yesterday's Australian Financial Review

Alan Fels and Fred Brenchley had an opinion piece on anti-circumvention laws, mod chips, the Stevens v Sony case, and the current moves to reform Australian TPM law in the Australian Financial Review today (sorry, subscribers only). A taste:

'In essence, a wider copyright approach involving access controls would hand copyright owners extra avenues to exploit consumers, dividing markets as Sony and others do.

Attempts to cream money from booming internet transactions by various gateway devices are on the rise. Music companies, for instance, are complaining that performance societies are colluding to inflate charges for music downloads in various countries. Australian consumers, far from the major global markets, would be particularly vulnerable to any legalised access controls. The risk is that Australian consumers could be segmented out of global competitive markets.

Australia may have obligations to protect copyright owners, but it must be careful in so doing that it does not hand them a 21st century digital version of Pope Alexander's global partition.

 
A timely little Parliamentary Library Research Note (crossposted at LawFont)

At a time when there's a little flurry about the application for a trade mark for 'MADE IN AUSTRALIA', it's interesting to see this little Parliamentary Library Research Note on the significance of Country of Origin labelling. As you might expect, it shows there is little research, but what there is suggests that country of origin does matter to Australians:

'The Australian Made Campaign occasionally commissions surveys on consumer attitudes to country of origin issues and the Australian Made logo. Its most recent consumer survey was completed in 2003. The survey, based on consumers’ response to a set of four questions, showed that 45 per cent of surveyed consumers buy Australian made products whenever possible and that 1 in 3 of those surveyed specifically look for the 'Made in Australia' label.(10) The survey also found that 'Product of Australia' labelling has greater recognition and acceptance by consumers than 'Made in Australia':

The Campaign’s research findings are that almost 8 in 10 (79%) respondents correctly believed that the terms ‘Made in Australia’ and ‘Product of Australia’ have different meanings. Consumers generally understand ‘Product of Australia’ to be the higher claim, though this understanding is significantly lower amongst younger people than older people.

 
CAL finds religion in the TPMs inquiry (crossposted at LawFont)

Submissions are starting to find their way onto the website of the Legal and Constitutional Affairs Committee website. That committee is doing an inquiry into the exceptions that should be provided to the new anti-circumvention laws which must be enacted in Australia as a result of the Australia-United States Free Trade Agreement.

In its submission on fair use/fair dealing, The Copyright Agency Limited (CAL) found history, harking back to the invention of the wheel, which it appears CAL did not realise was a recent Australian invention, which received an Innovation Patent.

Now it's serious. CAL have found religion:

...it is the simple foundation principles that matter most.

The principles are those we were taught from childhood. They have been core planks of legal, ethical, and religious frameworks from the 10 Commandments ' thou shalt not steal' around 1400 BC and the Buddhist Five Precepts of morality, panca-sila, laid down over 2,500 years ago which includes abstinence from taking what is not given, to current anti-theft laws.

The principles are permission and respect. Don't take without permission and respect the property of others.

That, in a nutshell, is what this investigation is all about.

You know, it's not even worth beginning on this from a substantive perspective.

How about other principles? Like, say,

• 'If I have been able to see further, it was only because I stood on the shoulders of giants' (Sir Isaac Newton, 1675 (pointing out that access to existing knowledge is essential for innovation);
• 'He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density in any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation.' (Thomas Jefferson, 1813, pointing out that there is nothing 'natural' about property in ideas).

Too recent? Hmmm, ok, what about we go back to this 'property' idea. What about other people's fundamental rights in property? For example, what about the 'legal rights of the owner of a Sony CD ROM and PlayStation console to copy the same for limited purposes and to use and modify the same for legitimate reasons, as in the pursuit of that person's ordinary rights as the owner of chattels' (Kirby J, Stevens v Sony at [213]). OK, so looking just at fundamental rights to Sony PlayStation games probably isn't really to call on fundamental and ancient privileges. But you can't ignore the fact that, in reality, granting rights in copyright is an interference in the 'natural' rights of individuals to do what they like with their own physical and legitimately acquired property. Including books. Including PlayStation games.

If copyright owners didn't use TPMs to interfere with other people's rights - rights to make fair dealings; rights of libraries to give casual visitors access to databases (rather than restricting access only to students); and consumers' rights to play legitimately purchased material on legitimately purchased devices, this would indeed be a much simpler issue and a much simpler inquiry. If the issues are complicated, it is because TPMs are not only used for such purposes. They are used, in fact, to 'extend the copyright monopoly rather than match it' (Gleeson CJ et al, Stevens v Sony, at [47]). And that's where the problems begin.

Let's make this clear. I'm not saying copyright owners don't have rights to use TPMs to protect their legitimate interests. Of course they do. But at least some of the opposition to TPM law lies in the very simple fact that the broad rights it tends to grant tend to be abused by some copyright owners. Some discretion in drafting, and some exceptions are required to make sure this kind of thing doesn't get out of control.

 
Were you wondering what was happening in the Kazaa case? (crossposted at LawFont)

You might recall that on 5 September of this year, Justice Wilcox handed down judgment in Universal Music Australia Pty Ltd v Sharman License Holdings Ltd, colloquially known as the Kazaa case. It's all about whether Sharman and others authorised infringement of copyright occurring over the Kazaa network. Wilcox J held that they did. I commented on the case at the time.

Were you wondering what had happened in the case? Whether it was on appeal? What was being done about the orders, at the time, requiring Sharman to make adjustments to their technology with a view to reducing the level of infringement occurring via the Kazaa network?
Well, thanks to the wonders of the Federal Court's eCourt facilities, we can find out.

An application for leave to appeal was filed on 25 September 2005, and on 10 October, orders were made in those proceedings. Leave has been granted to appeal, and certain other orders have been made:

1. requiring the parties to file their Notices of Appeal within 7 days and do everything necessary to ensure all appeals are able to be heard together in the February 2006 sittings of the Court;


2. extending the stay on the injunction which, under the 5 September judgment, restrains the respondents from authorising Kazaa users to do in Australia any of the infringing acts, in relation to any sound recording of which any of the applicants is the copyright owner, without the licence of the relevant copyright owner


3. directing the convening of a conference by a Registrar of the Court, between technical representatives of parties for the purpose of discussing possible agreement on a protocol [to modify the Kazaa system in a targeted way, so as to protect the applicants’ copyright interests (as far as possible)]. The conference is to be conducted on the basis that the feasibility of ensuring either or both of the situations referred to in order 5 made on 5 September 2005 is not a matter in issue at the conference.


4. The Registrar is to report to Wilcox J on the progress of the conference and an assessment of the extent to which the parties are participating in a constructive and bona fide way in attempting to reach an agreement


5. requiring that Sharman Network Ltd and LEF Interactive P/L, on the one hand, and Altnet Inc and Brilliant Digital Entertainment Inc, on the other, each provide security for the applicants’ costs of appeal in the sum of $100,000
   

This is interesting. At the time of the judgment, I called Justice Wilcox 'brave', for being prepared to get into technological design issues. I noted that:

this is a brave move indeed. Given the experience over in the US in the Napster litigation, where similar attempts by a trial judge led to much ongoing disputation about the form of orders that only went away when the litigation collapsed under its own weight, I’m surprised that any judge would want to get into this. All the more so given the traditional reluctance of the courts to grant injunctive relief that will involve forcing parties into an ongoing relationship, which will require ‘ongoing supervision’ by the court of the order (Patrick Stevedores v MUA (1998) 195 CLR 1 at 46-47).

These orders indicate that Wilcox J was serious. He was quite prepared to get into technical design. He was serious about wanting the appeal heard quickly, and he was very serious about the need to ensure that the appeal did not prevent progress on the changing of the Kazaa technology.

But wow. At the same time as the parties are working on a really quick appeal, they are also expected to argue over amendments made to the technology, to reduce infringement. There are going to be some very busy lawyers up there in Sydney, aren't there!

 
Drumroll please..... It's a Bloglaunch
LawFont - new group blog on law and technology

Today me and two friends/colleagues have launched a new blog. It's called LawFont, and you can find it here.

Most posts have so far focused on legal and technological developments in Australia, the United States, and Europe, although some have also touched on policy and economic issues. (There is the occasional bit of pure geekiness, too.) We will also be introducing a regular series of posts ("What is....?") explaining selected areas of technology, from open source software to podcasting. We think that the multi-disciplinary and multi-jurisdictional approach is unique, maybe interesting and potentially quite useful!

I'm one of the authors on LawFont, and there's two others:

• Sarah, who has worked as a lawyer in New York, and currently works as one in Sydney. She has a doctorate from Oxford, and undergraduate/law degrees from Harvard and Oxford; and
• Ben, who works as a lawyer in Sydney. He has a doctorate from Oxford, and undergraduate degrees from Sydney. He has worked as a judge's associate (clerk) at the High Court of Australia. Ben designed and maintains the LawFont website.

So you can see, we have an international angle, and we have both the practice and academic angles covered.

Now, I know what you are thinking. This blog, Weatherall's Law, is not disappearing--at least not for the moment. I want to explore the group blog thing, partly because it's tiring keeping up with the solo blog, and also, because Ben and Sarah have many of the same interests as me. I think there are some good synergies there, and people who've enjoyed Weatherall's Law will enjoy what goes on LawFont too - both from me, and my co-authors.

What I'm planning to do for the moment is crosspost all my IP stuff on both blogs. I started to do this last weekend. Some of my older posts I've also copied onto LawFont. I'll use LawFont for non-IP type posts as well. And I will decide, after a while, whether to keep Weatherall's Law. For the moment, you can still come here for your Australian IP news. And I'll maybe ask for views after a while about whether to keep this site.

I'm thinking LawFont may be preferred by all my readers who have complained over time about the comments facility. LawFont has a few advntages:

• better comments facility; and
• less ugly template, and
• categories for posts, and
• Ben and Sarah's wisdom as well as mine.

Comments on LawFont are most welcome, naturally. Get in touch if you have views!

 
Copyright and the meaning of 'copy' (or, reproduction in material form)

When I commented on Stevens v Sony (here, and then here), I focused on the issue of the meaning of the anti-circumvention provisions. As others have pointed out (here, and Warwick Rothnie here), other matters were raised in the case - in particular, the meaning of reproduction in material form, or 'copy'.

Copyright owners, and their representatives, often act as if the coverage of every electronic copy was something that was self-evidently, obviously, something that should be within the scope of their exclusive rights. Michael Williams, from Gilbert & Tobin, is one person whom I've heard make this argument (at IPSANZ Annual Conference, last year, on a panel I also was on).

In that context, I'm glad to see someone like William Patry - someone not known for his 'anti-copyright' views (because he doesn't have them, if anything he can be a bit overly protective in his views), say this:

'A work is “fixed” in a tangible medium of expression when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration. A work consisting of sounds, images, or both, that are being transmitted, is “fixed” for purposes of this title if a fixation of the work is being made simultaneously with its transmission.

This definition was intended to protect authors at the copyrightability stage, but after MAI v. Peak, it has grown into a monstrous weapon by which every act of buffering or caching results in a "fixed" "copy" in the infringement sense of that last term. It beggars the imagination that the Founders would have deemed such acts infringing: they are merely a technological ends to a means.

We may be at the end of the road conceptually and semantically when "copy" can be impressed into banning all sampling and imposing liability for buffering and caching no matter the end purpose.

 
Patents, business methods, and the requirement(?) that the claimed invention relate to a 'field of technology'

One issue that is knocking around in Australia at the moment is the scope of the concept of 'patentable subject matter'. In particular, there has been a debate - and differences between the Patent Office and at least parts of the profession over whether, to be patentable, a claimed invention has to relate to a 'field of technology'.

The issue is whether 'pure' business methods - business methods which are not 'implemented' in the form of some kind of technology (like computer software/hardware) can be patented - or whether they aren't really inventions in a 'field of technology'.

The issue was raised squarely by a recent case in the Federal Court, Grant v Commissioner of Patents [2005] FCA 1100 (12 August 2005), in which Branson J determined an appeal from a decision of the Deputy Commissioner of Patents. The invention in Grant was described as follows:

1. an asset protection method for protecting an asset owned by an owner, the method comprising the steps of:
(a) establishing a trust having a trustee,
(b) the owner making a gift of a sum of money to the trust,
(c) the trustee making a loan of said sum of money from the trust to the owner, and
(d) the trustee securing the loan by taking a charge for said sum of money over the asset.’

In Grant, Deputy Commissioner of Patents Herald said:

'This invention raises directly the question of whether there are any limits on subject matter for the grant of a patent. In particular, can a patent properly be granted in a situation that involves no discovery of a law of nature, or application of technology in any manner or form.'

The DPC rejected the patent, in part because:

'The history of the development of the concept of manner of manufacture has consistently involved either the discovery of laws of nature or the application of technology based on the laws of nature. The present invention is fundamentally different in that there is no new law of nature, and there is no application of technology (in the broadest possible sense of the word) to implement the method of the invention. Rather the invention is a discovery in relation to the laws of Australia, useful in the affairs of the populace.'

Branson J took a different view: she decided that the Grant patent did not satisfy the requirement “that its value to the country is in the field of economic endeavour” – Virginia-Carolina Chemical Corp’s application (1958) RPC 35. The economic utility of the ‘invention’ was of value only to those whose assets are protected. Patentability must be interpreted, Branson J said, in accordance with the fundamental policy objectives of the patent system - including whether the grant of a patent provides sufficient benefit to society to outweigh the social cost of the patent monopoly. In this case, the claimed invention did not have the requisite economic utility in terms of adding to the economic wealth of Australia or otherwise benefiting Australian society as a whole.

I blogged about the Grant decision here. So did Warwick Rothnie (far more extensively than me!). David Clark, a partner at Blake Dawson Waldron, has also commented - in a document that, most annoyingly, I can't directly link to. You can find it by going to the Blakes page here, and searching for "Grant" and "patents".

Grant should also be seen in the context of another decision, by the same Deputy Commissioner of Patents, In Re Innovation Patent No 2004100848 in the name of Peter Szabo and Associates Pty Ltd [2005] APO 24 (May 2005) (‘Szabo’). In Szabo (which involved a kind of financial scheme for a 'reverse mortgage'), the DPC outlined a requirement, in patent law:

'The purpose of s.6 of the statute of Monopolies was 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 summary, in Australian law at the moment, there is a tussle going on about the patentability of so-called 'pure' business methods - ones that aren't 'instantiated' in some kind of technology (like computer software, or hardware). The Patent Office is rejecting them, using this 'technical effect' or 'technology and science' requirement. Their information sheet on business methods says:

'Essentially a patent may be granted for a business method where there is something artificially created to implement the method. That is, the implementation of a business method may require the interaction of a physical system or process with the method. There should also be sufficient detail given in the description about the specific operation'

The only 'business methods' case we have so far in the courts (apart from Grant) is the Catuity case, which involved smart card technology. ACIP reported on the issue of business method patents - the report was released in February 2004. In May 2005, the government responded to the report (basically, agreeing with ACIP that no changes would be made to the Act, and that the matter would continue to be 'monitored'). Some members of the profession, like David Clark at Blakes, have criticised the current attitude of the Patent Office, arguing:

'In this era of knowledge-based economies and and globalisation there is a strong argument that any prohibition on business method patents would be short-sighted. History has shown that controversial patented subject matter, such as methods of medical treatment of humans, are now accepted standards. If an innovation satisfies the requirements of novelty and inventive step then, provided it is not contrary to law, or covered by a statutory exclusion such as human beings and the biological process for their generation, it should be suitable for patent protection. (BDW Patent Alert, June 2005; currently available on the BDW website - go to publications and then Patent Alert).

For more commentary, see Rothnie's views. There's also academic controversy over the issue: see, for example, Merges' 1999 paper, 'As Many as Six Impossible Patents Before Breakfast: Property Rights for Business Concepts and Patent System Reform'.

Why am I talking about this all again?

For simply this reason: currently, Grant is on appeal (NSD 1573/2005). Leave has been granted to appeal. So the issue is a live one.

And into that mix, it's worth injecting this decision of the Board of Patent Appeals and Interferences of the US Patent and Trademark Office: Ex parte Carl A. Lundgren. The claimed invention in the case was described as follows:

'1. A method of compensating a manager who exercises administrative control over operations of a privately owned primary firm for the purpose of reducing the degree to which prices exceed marginal costs in an industry, reducing incentives for industry collusion between the primary firm and a set of comparison firms in said industry, or reducing incentives for coordinated special interest industry lobbying, said set of comparison firms including at least one firm, said primary firm having the manager who exercises administrative control over said primary firm's operations during a sampling period, wherein privately owned means not wholly government owned, the method comprising the steps of:
a) choosing an absolute performance standard from a set of absolute performance standards;
b) measuring an absolute performance of said primary firm with respect to said chosen absolute performance standard for said sampling period;
c) measuring an absolute performance of each firm of said set of comparison firms with respect to said chosen absolute performance standard for said sampling period, said measurement of performance for each firm of said set of comparison firms forming a set of comparison firm absolute performance measures;
d) determining a performance comparison base based on said set of comparison firm absolute performance measures by calculating a weighted average of said set of comparison firm absolute performance measures;
e) comparing said measurement of absolute performance of said primary firm with said performance comparison base;
f) determining a relative performance measure for said primary firm based on said comparison of said primary firm measurement of absolute performance and said performance comparison base;
g) determining the managerial compensation amount derived from said relative performance measure according to a monotonic managerial compensation amount transformation; and
h) transferring compensation to said manager, said transferred compensation having a value related to said managerial compensation amount. '

Note that there are some similarities in the kind of claim this represents, and the claims considered in the Grant case.

The examiner rejected this application for patent under 35 U.S.C. § 101 (non-statutory subject matter), saying that "both the invention and the practical application to which it is directed, [were] outside the technological arts, namely an economic theory expressed as a mathematical algorithm without the disclosure or suggestion of computer, automated means, apparatus of any kind".

The Board of Patent Appeals and Interferences, by majority, have rejected this view, holding that there is no separate "technological arts" test in determining whether a process is statutory subject matter. There is no such requirement to be found, they held, in the statute or the case law, and none should be created.

There's some interesting discussion, particularly in the dissent, about the relationship between the idea of 'technological arts' and 'useful arts'. So if you're thinking about Grant, and what might happen in it, this US decision is probably worth a read.

UPDATE: Patently-O has some commentary here. Importantly, according to Patently-O, this is a 'landmark' decision (in other words, no, Australia does not have to adopt this decision, which is expansive even by US standards). As Crouch states:

'This decision will once again expand the role of business method patents by freeing them from being tied to a computer or other electronic device. At the same time, this decision widens the gap between the US and many other countries who are still debating patentability of software.'

 
McHugh J states the bleedin' obvious. The important. But the bleedin' obvious.

From the SMH, via Andrew Leigh:

Australia's reputation as a human rights champion had been so tarnished in recent years that it could be called a wolf in sheep's clothing, the retiring High Court justice Michael McHugh said yesterday

 
Everything you ever wanted to know about... Music Industry Piracy Investigations

APC Magazine has a very interesting 'feature' today on MIPI, the friendly-sounding but definitely serious enforcement arm of the Australian Record Industry (doesn't it just make you think it's the name of a Muppet figure from Sesame Street? Hi, I'm Mippy. Who wants to play a spelling game with me? Can you spell P-I-R-A-C-Y?)

Anyway, name jokes aside, this is a serious report.

The first part of the report is on the settlement of the 'landmark' case against ISP Swiftel in relation to the use of BitTorrent, and in particular, the hosting of BitTorrent hubs. The case came out of raids, in March 2005, on Swiftel's premises. At the time, MIPI head Michael Speck said:

'“We have identified Swiftel as an ISP which has adopted BitTorrent technology to link infringers to music clips and sound recordings. We believe hundreds of thousands of downloads have been conducted during the last year in breach of copyright laws.

These raids are a new and important development in our fight against internet music piracy. The misuse of BitTorrent technology allows the high-speed download of large files from a wide number of sources.

MIPI has identified this Australian ISP as using the technology allegedly to conduct high volume sophisticated linking to illegal sound recordings and music video clips for its customer base. Songs, video clips, television shows and movies are being distributed.

The BitTorrent/Swiftel case was interesting for a number of reasons.

First would have been an early test of changes to digital copyright law resulting from the FTA with the US.

Second, it was started in the Federal Magistrates' court, leading to legal skirmishing when the ISP sought to have the case transferred to the Federal Court, on the argument that a case about new, difficult copyright laws should be heard in the more specialist forum with more specialist judges. The copyright owners resisted the transfer, at first successfully, but ultimately unsuccessfully - the case was transferred to the Federal Court. Both I, and David Starkoff, commented on this little legal skirmish at the time.

Third, it was about BitTorrent, and the liability for copyright infringement that might arise from BitTorrent scenarios. BitTorrent is a technology for P2P file distribution - even more distributed, and efficient, than P2P technologies of the Kazaa era. Wikipedia describes it as follows:

'With BitTorrent, files are broken into smaller fragments, typically a quarter of a megabyte each. As the fragments are distributed to the peers in a random order, they can be reassembled on a requesting machine. Each peer takes advantage of the best connections to the missing pieces while providing an upload connection to the pieces it already has. This scheme has proven particularly useful in trading large files such as videos and software source code. In conventional downloading, high demand leads to bottlenecks as demand surges for bandwidth from the host server. With BitTorrent, high demand can actually increase throughput as more bandwidth and additional “seeds” of the completed file become available to the group. Cohen claims that for very popular files, BitTorrent can support about a thousand times as many downloads as HTTP.'

BitTorrent provides some interesting issues for copyright infringement and copyright enforcement. As a protocol, BitTorrent has lots of legal uses - it has been used particularly to distribute large files, for example, distributions of Linux. Enforcement in the BitTorrent context has mostly, it seems, been targeted not at the writer of the software (this is a good thing!), but at 'BitTorrent Hubs' like Lokitorrent, which 'clearinghouse for links to pirated copies of movies, TV shows, software and music'. In other words, enforcement has been targeted at those who provide 'directions' to the infringing files. According to MIPI, this is what Swiftel were doing. It appears they've now admitted it. For quite a good background on the 'who is getting sued, and how' issue, this story on CNet is quite good. The reasoning behind this kind of enforcement is clear:

'For each file, there is a central “tracker” that keeps track of what clients have what pieces of the file, so clients can talk to each other and download efficiently,” states a MMRC report.

“Kill the tracker, and you kill the ability of any client to trade files with each other. BitTorrent is almost more similar to a direct-connect protocol like FTP or HTTP than a p2p network like Kazaa.”

It's interesting to see the case settle. I wonder whether Swiftel ran out of money to fight the case? Did it get no support from other ISPs? Did it consider itself basically stuffed after the Kazaa judgment, where Sharman were held liable for authorising copyright infringement as a result of their activities in supplying file-sharing software and encouraging its use?

Or did MIPI/ARIA just get tired of the legal fight? Were they, perhaps, satisfied with the Kazaa judgment , and the Cooper judgments - both of which deal with secondary liability for copyright infringement, and both of which came out, ultimately, in favour of the music industry plaintiffs? I wonder what implications this has for ISPs more generally?

Apparently, settlement was announced with a joint press statement. The statement is suitably contrite on Swiftel's part: to quote the statement as quoted in the APC report:

'“Swiftel regrets that it has not taken enough action to date to stop internet piracy. We are committed to implementing a new set of industry leading compliance programs to protect the music industry...

“In a step-by-step process Swiftel has undertaken a sophisticated regime that manages the receipt and actioning of copyright infringement notices issued by copyright holders...That regime has resulted, and will continue to result, in infringers being disconnected from Swiftel’s networks in appropriate cases.'

As an aside, I've often wondered: in an era of ubiquitous computing, and always-on Internet, where so much is only accessible via the Internet and where children bring home homework that requires the Internet - when is it 'appropriate' to disconnect a user from the Internet? How long is it appropriate to disconnect them for? Interesting issues indeed.

The other news in the APC Magazine report is the resignation of MIPI's relatively recently appointed head. After being headed by Michael Speck for something like 11 years, MIPI acquired new head Michael Kerin in April 2005. Now, he's gone - 6 months later. Apparently he's moving to AFACT - the Australian Federation Against Copyright Theft', the anti-piracy body of the Movie industry, and producer of that woeful set of anti-piracy ads that I criticised a long time ago for being (a) misleading and (b) lame (oh, and I wasn't the only one who thought so) (and yes, I know the AG launched the campaign).

Hey, maybe Michael Kerin will actually do something about AFACT's website. It's been sitting there for over a year now, promising to get more exciting...

Actually, the more interesting news in the story about the resignation is this little tit-bit:

'APC understands that ARIA is considering more criminal cases than civil cases in a bid to cut legal costs.

Criminal cases would allow ARIA stakeholders to leverage police prosecutors rather than long term legal partners Gilbert & Tobin.'

I wonder what the relevant law enforcement authorities think about that? And it's ominous indeed given the discussion in the AIPJ of the weaknesses, or problems, in the criminal copyright enforcement area. But it's consistent with the CNET story, linked to above, which also states that the shift is towards criminal cases. Wouldn't it be interesting if Australia bypassed the 'civil suits against individuals' stage, and moved to a criminal enforcement stage? I wonder how consistent that would be with the relatively long-standing policies of the government against over-use of criminal enforcement in the private context?

Read the APC Magazine reports. It's interesting stuff. It raises all kinds of questions in my mind about all kinds of issues. I can't even begin to answer them. In particular, it really does make me wonder where copyright enforcement is going to go next here in Australia. We live in mildly interesting times, it must be said.

 
Friday Amusement.

From today's Financial Review:

In a bit of byplay in the C7 trial last week, the trial judge (Sackville J) remarked to Noel Hutley of Counsel that he was pleased the High Court had recently reinstated his first instance judgment in a matter where the Full Court of the Federal Court had overturned him.

Sackville: Sometimes the High Court gets it right.

Hutley: They will be pleased to hear that Your Honour.

Sackville: It will be of great comfort to them.

Hutley: They always seem to be racked with self-doubt.

He he!

 
Thanks John.

I agree with Jason: John Quiggin is a legend:

I just received the report of the Joint Standing Committee on Electoral Matters Inquiry into the Conduct of the 2004 Federal Election and Matters Related Thereto. Uniquely in my long experience of making submissions to such committees, all my main arguments were accepted, and embodied in recommendations of a report, with no dissent. My main concern was to protect bloggers from being required to give their names and addresses and those of commenters. I argued that only paid advertisements should be subject to this requirement, and the committee agreed.

Well done, John.

 
Less comedy IP story of the day

Got an email from my mum this morning, who was watching the 7:30 Report last night, and saw an IP story. Gotta love that.

Bodum is in a fight with the copycats, over its '3 cup chambord'. I had to look up what a chambord was. I couldn't even find it in the Oxford Dictionary online. But Google Image Search to the rescue: this I think is what we are talking about:

Apparently there are naughty people out there imitating the chambord, and selling it to unwitting customers who think they are buying a genuine Bodum product. Interesting, this 'copycat' thing can be quite tricky, particularly if the packaging clearly distinguishes a different brand. The action Bodum would bring is 'passing off' - which would require a showing that consumers were misled as to the origin/quality of the goods. Katrina Rathie from Mallesons says there is evidence of such confusion. We will follow the case with interest!

As an aside, I wonder why this was considered an important enough story for the 7:30 report on the ABC? Is it because Australians are such caffeine addicts? I'm sorry I missed the story last night, but the whole transcript's up online. cool.

 
Oh, puh-lease. A 'Made in Australia' Trade Mark?

Comedy IP news item of the morning. ABC news radio were kicking up a stink this morning, responding to some NSW Minister who is kicking up a stink, about a trade mark application for the words 'MADE IN AUSTRALIA'.

'"I think it's difficult to imagine the impact it would have on the economy, the lack of confidence consumers would have that a product was in fact made in Australia, the lack of access to small business to have 'Made in Australia' put on their exports or on their local production'

The Small Business Minister said.

So I had a look at the ATMOSS database on IP Australia's website (a fantastic resource, might I just say). Looks like the offending application might be application number 1073022, which is, indeed, an application for 'MADE IN AUSTRALIA' , in relation to 'Retailing of goods; wholesaling of goods'.

Now, first thing. The application has not even been looked at yet.

Second thing. There is no way this is registrable. So everyone can just calm down, frankly.

To be registrable, a mark has to be 'capable of distinguishing the applicant's goods or services' from the goods of other traders. A mark is not 'distinctive' if it 'consist[s] wholly of a sign [ie, words] that [are] ordinarily used to indicate ... the kind, quality, quantity, intended purpose, value, geographical origin, or some other characteristic, of goods or services.' If it's not inherently distinctive (eg, an invented word, like 'KODAK'), it has to have acquired distinctiveness (actually be seen by customers as a trade mark, ie as indicating one trader, rather than just being used to describe origin).

I am constantly amused by how little people understand trade mark law. Some things just aren't registrable. And even when you get registration, that registration will not prevent people from using the sign for its descriptive purposes. So even if the mark got registered, which it won't, people could still describe their goods as made in Australia.

It reminds me of the Republican politician, who during the Bush/Kerry campaign for president, reportedly trade marked some of Kerry's 'Catchphrases', with a view to stopping Kerry from using those catchphrases in his campaigning. Amusing idea. But stoopid idea.

Get over it people. Trade marks are limited rights, for limited purposes.

 
Copyright is not a moral imperative?

William Patry draws our attention to an interesting copyright choice of law judgment in the United States. In the case, Sari Louis Feraud International v Viewfinder Inc (SDNY 29 September 2005), the defendant had taken photos of a fashion show and posted them on its website. The plaintiff sued in France, and obtained a default judgment. The plaintiff then sought to enforce that judgment in New York. The issue in the case was whether enforcement of the French judgment was 'contrary to public policy in the United States.

Interesting reasoning by the judge in rejecting an argument that the French judgment was contrary to US public policy:

'Copyright and trademark law are not matters of strong moral principle. Intellectual property regimes are economic legislation based on policy decisions that assign rights based on assessments of what legal rules will produce the greatest economic good for society as a whole. Different countries will, at different times, reach different conclusions as to the types of creative endeavor that should receive the benefit of copyright protection and the extent of that benefit, and different conclusions as to the kinds of competitive activity that should be encouraged or discouraged by trademark law. If the United States has not seen fit to permit fashion designs to be copyrighted, that does not mean that a foreign judgment based on a contrary policy decision is somehow 'repugnant to the public policies underlying the Copyright Act and trademark law.'

Just as interesting are some of the comments on Patry's blog. Have a look.

 
Smurfs blown up. Now that's my kind of 'Remix Culture'

Larry Lessig has many examples of 'remix culture' in his book, Free Culture. Examples of images or other existing works taken out of context and then used to make a point or make new creative works. I've given examples in the past, too, like the post I once did on the Tarnation film. The point that Lessig (and others) have made about 'Remix Culture' is the fairly simple old adage: creativity often builds on the past.

I reckon this new Unicef ad campaign against child soldiers in Belgium is a pretty good example.

I never really liked the smurfs, I admit it. But that's not really the point, of course.

Sometimes, you need to use existing material to make your point. Sometimes, 'free speech' and effective communication requires access to cultural icons like this. Surely, this Unicef campaign is a good example of that basic point? Of course, Unicef risk offending people who don't want their 'childhood icons' used for political purposes. But free speech sometimes is offensive. Attention grabbing? Thought provoking? Not nearly as effective if 'no name' cartoons had been created? Yes, to all of the above.

And yet, of course, to the extent that copyright protects the smurfs and their appearance and their 'song', use like this would require a defence of fair dealing. This would have to be 'criticism or review'. Is it?

The story can be found here on SMH.

Oh, and by the way, if you didn't think the 'right to parody' was important when it came to copyright, you might be interested in this article from a US newspaper, which has some pretty extensive quotations from various artists.

 
DMCA exceptions and Oz-DMCA exceptions

The US Copyright Office has announced the start of the next rule-making on exceptions to the ban on circumventing access control measures under the US DMCA. Submissions from the public are now being sought, with hearings scheduled for April 2006.

This is relevant to us here in Australia, as the House of Representatives Legal and Constitutional Affairs Committee is currently holding an inquiry on the appropriate exceptions under the currently-being-drafted Australian version of the DMCA, which we must enact as a result of the US-Australia FTA (for my previous comments on this, see the sidebar, or click here and here).

Might I point out the process adopted by the US to prepare submissions on this issue? 2 months for initial comments, with a period set aside for reply comments. Overall, the US process looks decidedly less rushed than what the Australian government appears to be doing.

 
And in other IP High Court news... Panel case refused special leave

Apparently special leave was refused by the High Court in The Panel case this morning. I assume the issue on which special leave was sought was the concept of 'substantial part' as interpreted in the recent Full Federal Court decision. (yes, I know - it's already been to the High Court once. On the meaning of 'broadcast'. But then the Full Federal Court gave a judgment on what constitutes a 'substantial part' of a broadcast).

So that long copyright saga draws to a close. All together now ... sigh.

I'd be relieved, only that it leaves Australian copyright law on the meaning of 'substantial part', particularly as it relates to Part IV subject matters, pretty much incomprehensible (hat tip: Michael Handler for passing on this news).

 
Aside: everything you wanted to know about academic thinking about open source...

...is available in this special issue of First Monday. enjoy!

 
Matt Rimmer's comments on Stevens v Sony ruling

Matt Rimmer from the ANU has sent me the following comments on Stevens v Sony, which I'll simply post in full:

High Court decision highly relevant

I think that the High Court was quite careful to ensure that its decision would be relevant for future legislative changes.

Kirby J, in particular, comments upon the need to address very particular concerns in any future iterations of the law:

"In these circumstances, it is preferable for this Court to say with some strictness what s 10(1) of the Copyright Act means in its definition of TPM, understood according to the words enacted by the Parliament. If it should transpire that this is different from the purpose that the Parliament was seeking to attain (or if it should appear that later events now make a different balance appropriate) it will be open to the Parliament, subject to the Constitution, to enact provisions clarifying its purpose for the future. Moreover, the submissions in the present case, as it progressed through the courts, called to attention a number of considerations that may need to be given weight in any clarification of the definition of TPM in the Copyright Act. Such considerations included the proper protection of fair dealing in works or other subject matters entitled to protection against infringement of copyright; proper protection of the rights of owners of chattels in the use and reasonable enjoyment of such chattels; the preservation of fair copying by purchasers for personal purposes; and the need to protect and uphold technological innovation which an over rigid definition of TPMs might discourage. These considerations are essential attributes of copyright law as it applies in Australia. They are integrated in the protection which that law offers to the copyright owner's interest in its intellectual property." (Kirby J, para 224)

If the Federal Government fails to take heed of the decision, the High Court has made it quite clear that they will exercise judicial restraint, and read down the law. Kirby J is even inclined to entertain the possibility of constitutional challenges.

The Federal Government, as a result, is in a right pickle. The Government has to adopt a broad definition of technological protection measures and narrow exceptions as part of the AUSFTA. However, they will also have to comply with the High Court's demands that they draft such laws with precision and clarity. The government will also need to take into account wider policy concerns that there are not inadvertant detrimental impacts for competition, access to information, and fundamental freedoms.

Thus the Attorney General's Department will have to show great flexibility and laser-like precision to satisfy these competing demands.

Matt has also commented (on Michael Geist's blog) on the importance of John Basten QC's performance to the result. Having been at the hearing myself, I strongly agree.