I've been remiss...

In noting a very signficant event in the online copyright/IP-interested world.

Lawrence Lessig (Stanford) has released his new book, Free Culture. Not only has it been released, but it's been released under a Creative Commons Attribution-Non Commercial license . So the whole book is online in pdf format, and people have already taken advantage of the License to make it available in other forms other than pdf.

Since I've only just begun reading the book, I've not got any particular comments on it yet. But I will. There is a page of links to reviews already online.

 
SMH opinion piece on record sales

...makes for interesting reading. Have a look here. Peter Martin gets some recognition that he deserves.

 
Blurring the division between criminal enforcement by the state, and civil enforcement by IP owners

Via Copyfight, a story out of the United States (Washington Post; reg'n req'd) of proposed legislation which would allow enable require Federal prosecutors to bring civil suits against file-swappers. (I say "require" because there would have to be pilot prosecution programs under the Act, as I understand it). The "benefit" for prosecutors is that they would no longer have to contend with the higher, criminal burden of proof, but would only need to show infringement and knowledge at the lower, balance of probabilities level. The benefit to IP owners is having more of their cases taken on by government, instead of having to file them themselves.

It's not surprising to learn that the Department of Justice (on which the burden of using the law would fall) did not ask for this additional power. One can only imagine that, if the bill passed, the pressure on the DOJ to use the power could become pretty strong.

I've not read the Bill so I'm not sure whether these civil enforcement efforts would lead to "civil penalty orders" being paid to the state. I assume that is the kind of recovery we are talking about - and not recovery that went to the IP owners.

But wait a moment: I would have thought that the appropriate division of powers/enforcement between the private "property owners" (the IP owners) and the State was: really serious cases - ones that actually threaten harm against the state, should be enforced by the State. Other cases should be handled by the property owners themselves. IP "theft", for the most part, may well cause massive economic harm to certain parties, but it is not the same kind of "breach of the peace" that warrants a high level of state resources being thrown into its prosecution. Or, at least, file-trading is not that kind of situation. Even assuming that some IP infringements are linked to organised crime, surely it is not the file-trading? Surely it is the selling of counterfeit CDs and things like that?

Civil suits brought by IP owners are expensive. But, and correct me if I'm wrong here, that's a business decision for IP owners. If civil enforcement suits are going to lead to better protection of their property and more legitimate profits going to the IP owners, then they will use the mechanisms of the courts. If they don't use the courts, doesn't that indicate they don't think the investment is worthwhile?

 
US Advisory Committee Report on the Intellectual Property Chapter of the US-Australia Free Trade Agreement

One of the processes that occurs within the United States, after a free trade agreement is signed, is that within 30 days of the President notifying Congress of the intention to enter an agreement, private sector advisory committees submit assessments regarding whether the economic interest of the United States is being served and U.S. negotiating objectives are being met. These reports are all available online now - at this site.

The Report (pdf) of IFAC-3, which reports on the Intellectual Property part of the Agreement, is available here.

From an Australian perspective, the Report makes sobering reading. Of course, there is always some "spin" in these kinds of things, but, being the industry report, you can expect that it will be more brutally honest in what has been, and hasn't been achieved than any government report on the same agreement. This is the report that highlights just what the US IP industries think they have achieved. A couple of points are worth highlighting.

The overall purpose and effect of the US-Australia free trade agreement

In this report we see, as you won't necessarily see from the US government's own mouth, how industry sees these free trade agreements as serving a broader purpose. I have to say, there is a certain air of "triumphalism" to the report. It is crystal clear that the industry sees an agreement with a developed country like Australia as critical to their overall strategy of raising IP standards worldwide through free trade agreements. They see the agreement as a significant achievement that will help convince other "FTA candidates" that IPRs are going to be central to any agreement. Consider this quote:

"IFAC-3 strongly supports the chapter on intellectual property and believes that, on the whole, it establishes key precedential provisions to be included in the other FTAs now being negotiated..."

And this one, which clearly states (as we already knew, of course) that the US sees these bilateral agreements as raising the general floor, and as steps towards the inclusion of the relevant standards in multilateral agreements in the future, including potentially the WTO:

"The Committee seeks to establish strong precedents in these FTAs in order to raise the global level of protection and enforcement, nationally and in regional and multilateral agreements."

Most importantly, consider this quote:

"IFAC-3 is particularly gratified that AFTA preserves these strong precedents set forth in these other agreements and now, with high-level agreements with both small developing countries in the CAFTA and a strong and mature developed country like Australia, it will prove much easier to convince future FTA countries that strong intellectual property protection is in the interest of all countries regardless of their economic circumstances.... The continuum of intellectual property protection that links [all so far negotiated] FTAs has sent an important signal to future FTA partners about US intellectual property expectations"

Sigh. I know we knew all this, but seeing it in black and white is undoubtedly sobering. The United States has clearly targeted Australia, not just as an "ally to reward" but, might I suggest, as a fairly weak but developed trading partner. It is important to the US's overall trade negotiation agenda that they be able to hold up a developed country as someone who would sign on to these levels of protection that are such a significant incursion into the freedom of Australia to determine its own intellectual property laws. Australia was probably one of the softest targets in terms of getting such a developed country partner on board. And we've allowed them to get away with a very high degree of interference in our internal affairs.

As I've said before: it's not just about taking on irrational US policies like copyright term extension. That's bad enough. But what I truly, strongly object to is the extraordinary degree of interference in our freedom to establish our own intellectual property laws; the extent to which compromises struck in our own law have been mown over and obliterated; the extent to which consultation processes in Australia have been completely sidelined by these backroom negotiations; the extent to which our ability to decide what exceptions to IP rights should be allowed will be removed if this agreement goes through.

And for the future: continued US interference

The other point that this IFAC-3 report really makes clear is, if this agreement goes through, the negotiation of the agreement is not an end, but only a beginning of US interference in Australian IP law-making. One of the points that Australian IP negotiator, Stephen Fox was arguing after the Agreement was made was that critics should carefully read the text and notice all the flexibility built into the language of the agreement - flexibility which, he asserted, meant that Australia did not have to mirror US law.

But have a look at this little gem of a passage:

"IFAC-3 expects that Australia will equitably implement all of the intellectual property-related provisions of this agreement, but will not hesitate to recommend US action under the provisions of the dispute settlement chapter should Australia's implementation of the agreement fall short of its commitments made in this agreement."

This is concerning, I think, and seems to clearly highlight the naivety of any view that the US will allow Australia to take full advantage of the so-called "flexibility" in the agreement. The US IP industries are not known for their generous interpretation of IP treaty language.

Of course, I'm aware that this is an industry report - not the USTR itself. But the USTR is known for its close relationship with, and indeed advocacy on behalf of, US industry.

An example of just why the willingness to use the dispute settlement procedures would have implications for Australia

I'd like to try to convince you that this foreshadowed use of the dispute settlement procedures is concerning. To do so, I want to show you that these industry bodies will not take a very flexible approach to interpreting the obligations of the FTA.

One substantive issue covered by the agreement is Australia's implementation of Article 11 of the WIPO Copyright Treaty: a provision that is worded thus:

"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."

Please note how general that language is. It is clear that it is for Contracting countries to decide what constitutes "adequate legal protection and effective legal remedies". yes?

As I've blogged rather extensively before, in Australia, this was implemented by the creation of a ban on the selling and distribution of devices that allow circumvention of technological protection measures. Australia decided that it was not necessary to make it illegal to use such devices, considering, as it was clearly entitled to do under the broad terms of the WCT, that the real harm lay in the selling and distribution of such devices.

Now look at how the IFAC-3 Report characterises this implementation of Art.11 in Australia:

Unfortunately, in consideration of these issues in the last three years, Australia had strayed in a particularly key area from what industry and the US government considered to be full and correct implementation of the obligations of those treaties."

Later, in the report (page 9), they refer to the "damaging loophole that Australia had enacted". Now, obviously, industry is entitled to see this as a loophole, and as an implementation that is less preferable than the one used in the United States. But what they say is that it was not a "full and correct implementation of the obligations".

How does this go to show that the FTA is concerning now? Surely this is old news?

Well, imagine, some time in the future, that Australia is implementing some aspect of the US-Australia Free Trade Agreement. Say, for the sake of argument, they are implementing Article 17.11(29), which deals with the liability of internet service providers. That article requires Australia to "establish appropriate procedures for effective notifications of claimed infringement" (Article 17.11(29)(b)(ix)). In other words, Australia must establish some appropriate "notice and take down" procedure so that copyright owners can ensure that material which they allege is their copyright is "taken down" by ISPs. The US established such a system in 1998. Australia has, up to now, basically relied on common law principles of authority.

Now imagine that, after extensive consultation with industry interests, and after hearing submissions from numerous parties (sound familiar?), Australia adopts a regime to deal with notice and take down procedures. It looks like all we have to do is ensure that such system is "appropriate". right? And, of course, it must be Australia that gets to decide what "appropriate" means in this context, right? right? Ah, but remember WCT 11. It only required "adequate legal protection". And yet IFAC-3 characterised our interpretation as "not full and correct". So what's to stop them deciding that our notice-and-take-down procedure is "not full and correct"? And if it isn't, what's to stop them then going straight to the dispute settlement procedures? Well, there's nothing to stop them, that's the short answer. Indeed, they've basically waved a flag and told us that is exactly what will happen. To think otherwise is somewhat naive.

That's enough for one post, I think. I could go on: there is much more of interest in the IFAC-3 report. Take a read, if you are interested in these issues. And remember, that submissions to the Australian Senate Committee hearings on the FTA are due by 30 April.

 
The irony, the irony

Via Lessig's blog, via Michael Geist: this quote from one of the Republicans in America:

" 'It's appalling,' said Representative Bob Goodlatte, a Virginia Republican. 'It cannot be allowed to stand that another nation can impose its values on the U.S. and make it a trade issue.'

Where to begin on the number of times that the US has "imposed its values" via a free trade agreement???

Of course, you could start with the whole IP chapter (beware - PDF) of the recent Australia-US Free Trade Agreement: see my frequent comments on this issue, here, here, here and here.

For those interested in these issues, please don't forget the Senate Select Committee appointed to hear evidence on the Australia-US Free Trade Agreement. Submissions due by 30 April 2004.

 
The Creative Commons concept

Some thoughts about this Creative Commons concept. As I've mentioned, the Australian version of Creative Commons was launched this week - or "soft-launched", as Ian Oi put it (since there's a whole process - now we're at the stage where there needs to be discussion, then a draft finalised, then the US people have to look at the draft, then there has to be negotiated, and then, maybe, at the end of all that, there will be a Creative Commons Australia).

But I've been thinking about this whole idea a bit. I had lots of questions last night but didn't get to ask any because so many people wanted to ask questions and get into the discussion. So, instead, I'm putting up these ideas here - feel free to respond!

As many of you will know, what Creative Commons is doing, at least at the moment, is providing a set of licenses that people can adopt, and use, and attach to their work.

In essence, Creative Commons "creates" a situation where creators - authors, musicians etc - without the need to go to lawyers, have an increased set of choices for how they can make their work available. They could always claim "all rights reserved" - that they own all the rights and people have to negotiate with them before they can use their material in ways that would infringe copyright. OR they can disclaim all their rights and just allow any use (in other words, they can devote their stuff to the public domain). With Creative Commons Licenses, they can devote SOME of the uses of their work to the public domain. And they can do that by attaching a license that is written in three ways: (a) in ordinary people language, (b) in legalese, and (c) in machine-readable code.

This, it seems to me, is a pretty good idea, in principle. It makes law more accessible. That's a good thing. Law should be more accessible. It also makes more accessible to the "common person" the flexibility that is already built into law (what with freedom of contract, and all of that). Most of the time, the flexibility of the law is only really available to those with deep enough pockets to purchase the right legal advice. If we can make even some of that available to more people, that's a good thing. That's worth doing.

But there seems to be more to the idea than that. Underlying much of the literature and thinking on the Creative Commons site is this the idea that we should be creating a commons of creative materials ? literature, music, art ? from which others may draw, without getting specific permission, particularly in creating anew. It's an idea that Lawrence Lessig touted in his book The Future of Ideas, and one that academics like James Boyle, from the Centre for the Public Domain, have been touting for some time.

This idea takes its inspiration from the open source and free software movements, which have generated an amazing amount of code and software through the building of a kind of commons of code - a set of materials that people can build on, and contribute to.

But there are two things you notice about the open source "movement" which are very different from the Creative Commons "movement".

First, the open source movement is built around a series of particular projects, it seems to me. Like the construction of Linux - which has had a pretty specific aim of building a working operating system and software surrounding such a system. Or the building of Apache for servers. That's what's noticeable about the success of the open source movement - it has successful projects. That's what you hear about - not the "success" of the GPL (the license used in some free software material (and yes, I know I'm simplifying).

So. Where's the Creative Commons Project? Well, there isn't really one, is there? There's some underlying philosophy of building a "commons" - but there's no real project to build one. There are open content projects around. Like Wikipedia. Like Project Gutenberg. Like the Public Library of Science. PLOS, actually, is using creative commons licenses. But these projects are not creative commons. They are independent projects.

The thing about the projects in open source software is that they create the core, or centre, or town centre perhaps, of a community, and they are a key source of motivation for people to contribute. I might want a good alternative operating system so I don't have to use Microsoft Windows. This gives me pretty good motivation to contribute to a vast distributed project that is seeking to build one. (There are other requirements of course for a successful open source project - modularity is an obvious one, and there are others, as Yochai Benkler has explored at length).

But surely, to contribute, I need motivation. I need a reason. I need to see some results from what I do. Many people (not all, but many) need to get something out of the project to put something in. And that something out can't be the "warm fuzzies" for everyone. It seems to me that the vague ideas of a "commons" coming out of the Creative Commons material isn't a sufficient motivating force. I'm only going to get benefit out of it if people put really cool stuff in. The term being thrown around (to some protest) last night was "digital junkyard". Ouch. I'm not contributing to a junkyard. And what guarantee do I have that it isn't just a junkyard?

Now the projects - like Wikipedia and the like - they aren't junkyards. So, maybe you could say - well, actually, the aim of Creative Commons (at least at the moment) is to create tools that individuals, and projects of course, can use. The licenses.

This brings me to the second difference between open source and Creative Commons. And that is, projects like Linux are built around a common license. A single license - in that case, the GPL.

So what is Creative Commons doing? Well, it seems to me that, at the moment, they are creating a proliferation of licenses. When I looked yesterday, there were all these different types of licenses. You can license on terms that:

• Require Attribution;
• only allow non-commercial uses;
• don't allow derivative works; or
• require derivative works to be shared - something like the GNU GPL; or
• are for music and allow sharing of the music; or
• allow sampling

And there's talk of an 'educational use only' license. And you can have permutations that use various of these terms. And if you like, you can take and adapt the Creative Commons licenses, which are themselves licensed under a creative commons license.

Now, I can see why there is this proliferation of license types. It enhances author autonomy. It makes more author options available and hence encourages authors to use the licenses. But this same plethora of license options - the author autonomy enhancing aspect of the project - seems to be in some tension with the goal of having a 'commons' with low barriers to creation. Material subject to a non-commercial uses only license in particular is not "in the public domain" for use - it is subject to a rather vague restriction. More than one participant in the Creative Commons discussions has pointed out that educational limits, or non-commercial limits, do not a commons make - rather, they make for many disconnected "islands". One participant put it bluntly: saying that

"Creative Commons licenses are incompatible because [they] allow so many friggen options, a number of which have nothing to do with building a public commons, but instead have more to do with creating a Flea Market of individual retailers hoping free samples of their work will increase sales of a commercial version."

The Discussion Boards of Creative Commons actually illustrate the tension rather nicely. There's quite a few people there commenting that Creative Commons is not learning from the lessons of the open source movement, in trying so many different license options. They are also complaining that some of the licenses - like the "non-commercial" or "educational only" ones don't belong because they don't really contribute to a "commons".

So I suppose the question in my mind, from all of this, is: do Creative Commons know what they are aiming to do? Do they have a coherent rationale, and are the means they are choosing going to lead to the kind of successful, vibrant commons that they say they want? To me, it seems a bit vague, like they are trying to do too many things in the context of one "project". But I could well be wrong here. It is going to be very interesting to see, I think.

None of this, by the way, detracts from my earlier comment that having licenses available to pick up and use is a good thing. I can see how this makes law accessible to creators whom copyright is supposed to assist, and who, ironically, have little hope at present of understanding how copyright works. So. Don't take all this as "creative commons won't work, and shouldn't be encouraged". But I do have this overarching question in my mind: how is this all going to work? And what is going to provide the motivation for people to join in?

One final thought. Maybe the motivation comes from the fact that, in reality, this is what people are doing already. Maybe the creation of more, external "motivation" isnt' necessary, as with open source, because people, particularly in academic fields, already put stuff out there in the expectation that people will provide attribution, and that they will deal with the creator directly if they want to pusue the material commercially. So maybe my concerns are unfounded. Maybe creative commons is building tools to facilitate what already happens in practice. Maybe it's just lawyers sticking in their noses to something that has been working without legal foundation. And providing just a little extra security for the actors. As I've said, it will be interesting. I wish the project every success.

 
RIAA Law Suits

Hmmmm, haven't been posting about this particular issue in a little while. But the count of RIAA lawsuits against people is mounting. According to a story in the Australian today, more suits were filed on Tuesday in the United States, and now:

"Including Tuesday's filings, the recording industry has sued 1977 people since launching its legal assault against online music piracy last fall, and has reached out-of-court settlements in around 400 of the cases."

Clearly, popularity contests are not what the RIAA is looking to win. That's quite a lot of law suits - action of that kind can't be cheap.

 
Creative Commons Australia is away

The Melbourne Launch of this project was last night. Brian Fitzgerald, Ian Oi and Tom Cochrane spoke, and the session was followed by plenty of questions.

I'll have some more thoughts up soon, but in the meantime, the proposed licenses are up on the Australia site online, and the Discussion Board is already up: Ian has a piece up on the question of how Australian moral rights fit into the Creative Commons "thing".

 
Creative Commons: Launching today and tomorrow, and the discussion pages are up

As I've noted, Creative Commons Australia launches today in Sydney; tomorrow in Melbourne, hosted by IPRIA. Remember - tomorrow's launch in Melbourne is free. Come and find out what it's about.

As an addition, the Australian discussion pages are now up on the main creative commons (US) site. So you can now go and have a look at the licenses, and join in discussion of the project in Australia.

 
Australia-United States Free Trade Agreement: Senate Select Committee Announced

OK, so this is important. As we all know, Australia and the United States concluded a free trade agreement in February. My views on some of the issues have been raised often: see my posts here, here, here, and here.

A Senate Select Committee has been established with the following terms of reference:

1. examine the agreement;


2. provide a democratic and transparent process to review the agreement in its totality to ensure it is in Australia’s national interest; and


3. examine impacts of the agreement on Australia’s economic, trade, investment and social and environment policies, including, but not limited to, agriculture, health, education and the media

Submissions are due by 30 April 2004.

It is important that the Senate Committee hear all relevant views. I encourage people to put together submissions.

And a call for information: If anyone is aware of empirical work done on the costs/benefits of copyright term extension, please email me with references or contact points. I'm interested to know what is out there.

 
Update on creative commons Australia

Creative Commons Australia launches next week, as I've already blogged.

I noted below that Ian Oi and other leaders of the Australian creative commons project were seeking comments on the licenses, and discussion in the discussion forum. Apparently there have been some webmaster delays in getting the licenses and discussion forum up; I'm told it should be fixed by Monday. At any event, there will be lots of discussion, I'm sure, once the launch has happened. I look forward to it!

Don't forget: the launch dates:

• Sydney Launch on Monday, 22 March, hosted by the Copyright Society;



• Melbourne launch on Tuesday, 23 March at 6pm, hosted by IPRIA. Please note that the Melbourne launch is free. So there's no excuses not to come!

 
Update: Panel case

I have evidence now that some lawyers do read this blog! This, of course, makes me happy.

I wanted to draw attention to one comment, that I think is interesting: a comment on this post, from a lawyer who acted for Channel 10, that explains more about the Panel case and why it happened the way it did. I think it's interesting: further comments are really welcome on this - on the blog, or you can email me directly.

 
Creative Commons Australia are asking for comments

I'm posting this more generally: a comment from Ian Oi on my last post.

If you are interested in the Creative Commons project in Australia, everyone, Ian and the other leaders are asking that you visit this site, and go to the CC Australia Discussion Forum . Creative Commons here are seeking as much public input/comment on the draft licences as possible as there are some important philosophical issues that CC USA have not explored in any depth: eg, things like what to do about the integrity right in a regime that explicitly recognises such moral rights.

Go to it, people.

 
Creative Commons is launching in Australia next week

QUT has signed a memorandum of understanding with Creative Commons and is launching the Australian version of this fine initiative next week in Sydney and Melbourne. IPRIA (my home research institute) is hosting the Melbourne launch; the Copyright Society is hosting one in Sydney. The initiative in Australia is being run by Brian Fitzgerald (QUT), Ian Oi (BDW) and Tom Cochrane (QUT). (I presume there's also a Qld launch but I've not been able to find any links to anything...)

If you're interested in the public domain, free software-style licensing for non-software products; or just generally copyright and creativity issues, I strongly recommend you find out about this new initiative. If you've been following the strengthening of copyright issues, the Creative Commons is one of the ways that the basic mechanisms of copyright can be used to ensure ready distribution of works with some, not all rights reserved.

For more on creative commons - see their US website, which has fantastically useful FAQs and mission statements and stuff like that. Creative Commons is an initiative inspired by and launched by the Centre for the Public Domain at Duke University, and such scholars of renown as Lawrence Lessig and James Boyle, and is presently housed at Stanford Law School.

Come to one of the launches. See what it's all about.

 
The Panel: this (pdf) is not good

This is the High Court's own media release on the Panel decision.

On my reading, it's a little inaccurate - at least in that first paragraph, which states:

"The High Court of Australia today held that the Ten network had not infringed copyright laws with its use of snippets from the Nine network's programs on its weekly comedy chat show, The Panel."

On my reading, the High Court did no such thing. The High Court held that a protected "broadcast" is a programme (eg a television program), rather than "any visual images broadcast". According to the High Court, strangely, this meant that the case had to go back to the Full Federal Court so that the Full Federal Court could consider whether Channel 10 had taken a "substantial part" of any of Nine's broadcasts. It's not much of "win" for Channel 10. But perhaps I'm wrong: I've not had the time, or the calmness of mind yet, to read the judgment in detail.

 
Still can't resist: more thoughts on The Panel

More thoughts. Why, oh why, can anyone tell me - has the High Court remitted this matter back to the Full Federal Court. Why couldn't the High Court decide what a "substantial part" is? Anyone who can offer an explanation, I'd be very, very grateful. It seems to me that the Trial Judge did, after all, make more than sufficient findings of fact to base a decision on. And if the matter wasn't fully argued in the High Court - why not?

 
OK, can't resist - just a couple of comments on the High Court Panel judgment

For those who joined us late: this is the case where Channel Nine sued Channel 10 for the use, in the show The Panel, of excerpts of Channel Nine television programs. The Panel team used to take little bits from broadcast in the previous week, as a starting point for discussion, comedy, or just plain something to laugh at.

Channel 10 argued two things: that they hadn't taken a "substantial part" of any of Channel Nine's broadcasts, and that they were protected by fair dealing defences.

Now, the fair dealing defences, as construed by courts below, were successful for some of the excerpts used, unsuccessful for others. Fair dealing was not appealed to the High Court (unfortunately). But Channel 10 did appeal the meaning of "broadcast".

What the High Court has done is overturn the Full Federal Court judgment - and send the matter back to the Full Federal Court to look at the question of what counts as a "substantial part" of a broadcast, as interpreted by the High Court. And so the merry-go-round continues...

The case all turns on approaches to statutory interpretation - what does the Act mean when it says that copyright exists in a "broadcast" - is it any visual images sent that is protected, or broadcast "programs"?

Basically (and to over-generalise significantly): the Full Federal Court (endorsed by Kirby J and Callinan J in the High Court) took a pretty strict, textualist approach - looking at the very particular words of the statute and being quite unprepared to read those in the context of just what Parliament were trying to protect.

The Majority in the High Court (McHugh ACJ, Gummow and Hayne JJ) have said that, if you look at the legislative history, and the context, what Parliament was trying to protect was

"the cost to, and the skill of, broadcasters in producing and transmitting their programmes, in addition to what copyrights may have subsisted in underlying works used in those programmes. There is no indication ... that, with respect to television broadcasting, the interest for which legislative protection was to be provided was that in each and every image discernible by the viewer of such programmes, so as to place broadcasters in a position of advantage over that of other stakeholders in copyright law, such as the owners of cinematograph films or the owners of the copyrights in underlying original works." (paragraph 29)

Yup, that sounds about right to me. We also have a useful reminder from the High Court that the old aphorism from University of London Press Ltd v University Tutorial Press Ltd that "what is worth copying is prima facie worth protecting" is not useful (see paragraphs 14-17). And finally, I particularly like this paragraph, which rings oh-so-true in the current context:

"Professor Waddams, speaking of the use of terms such as "piracy", "robbery" and "theft" to stigmatise the conduct of alleged infringers of intellectual property rights, describes "the choice of rhetoric" as "significant, showing the persuasive power of proprietary concepts"[14]. He also remarks[15]:

"Against the merits of enlarging the property rights of one person or class of persons must always be set the loss of freedom of action that such enlargement inevitably causes to others."

oh yes, oh yes.

 
WOOHOO!!! The High Court have overturned the Full Federal Court decision in The Panel case.

Three:two apparently. Haven't had time to read it yet ... but ... woohoo!

 
EU Passes IP Enforcement Directive

[update: The text of the Directive is available here. New York Times story here.]
[update number 2: The value of readers has been proven, yet again. According to a comment I've received, the whole thing was negotiated between Parliament, Commission, and Member States - so the Directive is likely to pass in the next council meeting (tomorrow) and become law. Members will then have 18 months to implement. Thanks Ville!]

The BBC are reporting that the EU has passed the IP Enforcement Directive. The Directive has been a source of considerable controversy over in the EU; it contains provisions which provide various procedural benefits to IP owners that should make it easier to enforce their IP rights; it also contains provisions on penalties and damages.

Also controversial has been the proposal to criminalise more IP infringements.

FFII have called it

"a major change in such a sensitive area of the civil justice system"

In statement to the EU Parliament in February 2004, IP Justice argued:

"The possibly wide scope of the enforcement directive is of frightening concern to consumers. The directive should apply only in cases of large-scale infringement that is done intentionally for commercial purposes. Without a requirement that the scope be narrowed to only large commercial counterfeiting, the directive's powerful provisions could apply against innocuous and insignificant infringements done without any commercial purposes or gain. Patent law is particularly unsuitable for inclusion in this directive on enforcement measures.

The scope must also be narrowed to apply only to those infringements that are done intentionally, so as to not sweep too broadly and punish accidental infringements. Particularly considering how murky the line is between fair use (fair dealing) copying and infringement, limiting the directive to commercial infringements protects consumers who infringed nominally, but had a good faith belief in the lawfulness of their actions.

Under both the Commission's original proposal and an amendment introduced by Rapporteur Fourtou, non-commercial infringements such as P2P file-sharing could fall within the directive's overbroad scope. The directive's powerful new law enforcement arsenal should be targeted against major commercial counterfeiters, not average European teenagers and their families."

The Directive also includes provisions on the right of information for IP owners - the kind of right found in the DMCA in the US (and considered in the Verizon proceedings (pdf)), and raised in proceedings in Australia, which is used to obtain information on file-sharers and other ISP customers on alleged copyright infringement.

I've not yet had time to analyse the final text - its gone through several permutations. But it could have some quite serious implications if it goes through. My understanding (please, correct me if I'm wrong!) is that it still has to go back to the EU Commission before any of this becomes an enforceable Directive, because the Parliament has made some amendments to the Commission's text.

 
IP hits Hansard!

So I'm walking home last night, as one does, and I'm flicking between radio stations, as one does, and I hit the live Parliamentary broadcast, as one usually doesn't but occasionally does, inadvertently.

And my attention is (most unexpectedly) caught because I hear the words "IP Australia" and I think - well, it's not often that those words are important enough for a Senator or Member to be saying. And I think, wow, perhaps they're talking about Free Trade Agreement (see my posts here, here, here and here), or the ALRC Gene Patenting Discussion Paper (see my post here).

But no. What IP issues are troubling the minds of the great in Canberra last night? Ugg boots. Yes, Ugg boots. More specifically, the story that the "Ugg" trade mark is owned, and being enforced, by a US company. Save our national icons, they say.

OK, so the whole Ugg Boot thing is a little upsetting, although at least in Australia you surely could make some "generic" arguments. But it really makes one wish they really would pay more attention to the really big IP issues.

 
Canadian Supreme Court shows up just how weird the Desktop v Telstra decision (and the High Court's refusal of special leave in the case) really was.

[Update: Matt Rimmer has pointed out (in his comment on this post) that he has written on this case before the Supreme Court made its decision - he is right, and I had forgotten! If you want more on this decision, then, I suggest you have a look at Matt's piece]

The biggest news of the day may still be the free trade agreement, as to which see further below here and here, and the ALRC Gene Patenting Discussion Paper, as to which see my post here.

But in other news yesterday (by the way, what is it about yesterday, that all this important IP stuff was happening???) the Canadian Supreme Court handed down its decision in CCH Canadian v Law Society of Upper Canada.

This is quite an important case. It also forms a rather sad contrast with recent decisions of our Full Federal Court: in the Desktop Marketing Systems v Telstra case, and in the Panel Decision. In it, the Canadian Supreme Court considers both originality, and the meaning of "research" in the copyright fair dealing defence.

(As an aside, it is also a contrast with our courts' recent decisions in another key respect: it is only 22 pages long. And unanimous. Ah, the relief...)

The basic issue was this: The Law Society maintained the "Great Library" at Osgoode Hall in Toronto. It is a research library, with one of the largest collections of legal materials in Canada. One of the services offered by the Great Library was a request-based photocopy service for Law Society members, the judiciary and other authorized researchers. On request, Great Library staff would reproduce legal materials, and deliver it in person, by mail or fax to requesters. The respondent, CCH (a legal publisher) sued for copyright infringement, seeking a permanent reproduction prohibiting the reproduction of the works. The Law Society counterclaimed for a declaration that copyright is not infringed when a single copy of a reported decision, case summary, statute, regulation or a limited selection of text from a treatise is made by its staff on request, or made by clients on a self-service copier, for the purpose of research.

So, the Supreme Court considered whether there was originality in the elements of the case reports, and legislation. It also considered whether the service provided by the Law Society was protected as a fair dealing for the purposes of "research".

Originality
The meaning of "originality" was considered at length by our Full Federal Court in the DTMS v Telstra (Copyright in Phone Books) case. Our court decided that:

• Authorship (likewise originality) does not require novelty, inventiveness or creativity, whether of thought or expression, or any form of literary merit;


• The test of originality is whether the work was not copied, but originated from the putative author


• there is no principle that the labour and expense of collecting, verifying, recording and assembling (albeit routinely) data to be compiled are irrelevant to, or are incapable of themselves establishing, origination, and therefore originality; on the contrary, the authorities strongly suggest that labour of that kind may do so.

In other words, our court accepted that sweat of the brow is sufficient to establish copyright, at least in relation to compilations (and it is pretty hard to confine this principle just to compilations).

Now compare this to the Canadian Supreme Court:

"For a work to be "original" within the meaning of the Copyright Act, it must be more than a mere copy of another work. At the same time, it need not be creative, in the sense of being novel or unique. What is required to attract copyright protection in the expression of an idea is an exercise of skill and judgment. By skill, I mean the use of one's knowledge, developed aptitude or practised ability in producing the work. By judgment, I mean the use of one's capacity for discernment or ability to form an opinion or evaluation by comparing different possible options in producing the work. This exercise of skill and judgment will necessarily involve intellectual effort. The exercise of skill and judgment required to produce the work must not be so trivial that it could be characterized as a purely mechanical exercise. For example, any skill and judgment that might be involved in simply changing the font of a work to produce "another" work would be too trivial to merit copyright protection as an "original" work."

This conclusion is supported on the basis of plain meaning, the history of copyright, recent jurisprudence, but also importantly, on the explicit basis of the purpose of the copyright act, which was stated to be as follows:

"the purpose of copyright law was to balance the public interest in promoting the encouragement and dissemination of works of the arts and intellect and obtaining a just reward for the creator. When courts adopt a standard of originality requiring only that something be more than a mere copy or that someone simply show industriousness to ground copyright in a work, they tip the scale in favour of the author's or creator's rights, at the loss of society's interest in maintaining a robust public domain that could help foster future creative innovation. See J. Litman, "The Public Domain" (1990), 39 Emory L.J. 965, at p. 969, and C. J. Craig, "Locke, Labour and Limiting the Author's Right: A Warning against a Lockean Approach to Copyright Law" (2002), 28 Queen's L.J. 1. By way of contrast, when an author must exercise skill and judgment to ground originality in a work, there is a safeguard against the author being overcompensated for his or her work. This helps ensure that there is room for the public domain to flourish as others are able to produce new works by building on the ideas and information contained in the works of others."

Note how the Canadian Supreme Court here is explicitly adopting an approach which gives real weight to the interests of users and the general public in determining copyright disputes. This is quite a contrast to the decisions of our own court, particularly in the Desktop case, which basically said - well, this could be a problem, but it is for the legislature to intervene, not us. It appears that the Canadian Supreme Court has decided to pay more than lip service to the balance of interests in copyright. It will be very interesting to see how these statements - unanimous, as set down by the Chief Justice of the Supreme Court of Canada - will be used.

Fair Dealing for the purposes of research
Another issue that the Canadian Supreme Court had to consider in the case was whether the Law Society, by providing copies of works to patrons for their research, could take advantage of the fair dealing defence for the purposes of research. Here, too, the Supreme Court consider tjat user rights must be taken into account, quoting Professor David Vaver sho said that "User rights are not just loopholes. Both owner rights and user rights should therefore be given teh fair and balanced reading that befits remedial legislation." Further, the Canadian Supreme Court also took a consciously broad approach to the exception:

"'Research' must be given a large and liberal interpretation in order to ensure that users' rights are not unduly constrained. ... research is not limited to non-commercial or private contexts ... Lawyers carrying on the business of law for profit are conducting research within the meaning of s.29 of the Copyright Act.

The Supreme Court then goes on to consider all the factors that must be taken into account in determining whether a dealing is "fair": the purpose of the dealing, the character of the dealing, the amount of the dealing, alternatives to the dealing, the nature of the work, and the effect of the dealing of the work. Taking all this into account, the Supreme Court decided that the practice of the Law Society was, indeed, a fair dealing. It did not matter that the research was someone else's, and the Law Society's actions were prior to that research:

"When the Great Library staff make copies of the requested cases, statutes, excerpts from legal texts and legal commentary, they do so for the purpose of research. Although the retrieval and photocopying of legal works are not research in and of themselves, they are necessary conditions of research and thus part of the research process. The reproduction of legal works is for the purpose of research in that it is an essential element of the legal research process. There is no other purpose for the copying; the Law Society does not profit from this service. Put simply, its custom photocopy service helps to ensure that legal professionals in Ontario can access the materials necessary to conduct the research required to carry on the practice of law. In sum, the Law Society's custom photocopy service is an integral part of the legal research process, an allowable purpose under s. 29 of the Copyright Act."

The Supreme Court in particular noted that there was no evidence of adverse market impact tendered by the publishers (interesting - note the apparent onus being applied here!)

One final interesting point: communications to the public
The Supreme Court also held that single fax transmissions in this case were not communications to the public. I'm not sure whether Australian courts would reach the same conclusion.

 
The ALRC Discussion Paper and the Free Trade Agreement: Consistent?

Some thoughts.

Today, the ALRC released its discussion paper, Discussion Paper No. 68: Gene Patenting and Human Health. On the same day, the text of the US-Australia Free Trade Agreement became available.

I've commented at some length on the free trade agreement below.

But the release on the same day, of course, raises some questions about consistency between the two, and it will be interesting to see whether, perhaps, the Free Trade Agreement may impact on some of the very carefully drafted and researched materials produced by the ALRC.

Just from a brief skim, by the way, the ALRC paper looks like an absolute must-read for anyone even vaguely interested in genes and patenting. It has chapters on all the big issues in this area: exceptions for medical treatment; exceptions for research use; the patentability of genes; the competition issues; compulsory licensing; statutory licensing schemes. It even has material on the protection of genetic databases. If it is anything like the Issues Paper, it is likely to be influential here, and overseas.

Some Consistencies
In some respects, it is interesting to see that there is consistency between the ALRC Gene Paper and the Free Trade Agreement. For example, in relation to the requirement of utility in patent law. One of the requirements of patent law is a requirement of utility (in our Act, in section 18, this is framed as a requirement that the invention must be "useful"). This is, to be honest, not much of a requirement at the moment in Australian law. As the ALRC notes,

"As interpreted by Australian courts, the express requirement of ?usefulness? in s 18 has a limited meaning. It requires only that the patent must produce the results that are promised upon a fair reading of the specification, and that the end in itself is useful. Nicol and Nielsen have commented that the ?usefulness? criterion does not require that an invention be useful in the sense that it is worthwhile or commercially practical; only that if a particular result is claimed, it must be achievable."

What is more, "usefulness" is not an express requirement at the examination stage (see section 49)
In the United States, prospective patentees are required to show that an invention has a use that is "specific, substantial and credible".

The ALRC is proposing to recommend that we develop guidelines for assessing utility, that adopt this US requirement (see Proposal 6-4). And in fact, the Free Trade Agreement has a provision requiring that:

"Each Party shall provide that a claimed invention is useful if it has a specific, substantial, and credible utility."

So that proposed recommendation by the ALRC may not be hard to get through.

Some interesting questions?
One question of interest relates to the proposal by the ALRC for a specific research exemption from liability for patent infringement. The ALRC are proposing that:

The Commonwealth should amend the Patents Act 1990 (Cth) to establish a new defence to a claim of patent infringement based on the use of a patented invention to study or experiment on the subject matter of the invention; for example, to investigate its properties or improve upon it. The legislation should make it clear that the existence of a commercial purpose or intention does not affect the availability of the defence.

This has been a topic of some interest to many in the research world, especially after a couple of universities were sued in the United States for patent infringement, including Duke University (Madey v Duke University). The issue is also currently being looked at by ACIP.

Could we have such an exception in light of the free trade agreement? It does seem that we could, because of Article 17.9.3, which provides that:

"Each Party may provide limited exceptions to the exclusive rights conferred by a patent, provided that such exceptions do not unreasonably conflict with a normal exploitation of the patent and do not unreasonably prejudice the legitimate interests of the patent owner, taking account of the legitimate interests of third parties."

This provision essentially mirrors the equivalent provision in the TRIPS Agreement (Article 30). Article 30 has been considered by a WTO Panel Report, in the Canada - Patent Protection Case (available here), a case in which the Panel did mention research exceptions as ones that might fit within Article 30.

In short, if we want a research exemption, it doesn't look like the Free Trade Agreement will stop us.

Some potential inconsistencies - or at least pre-emptions of the ALRC's work
Not everything is quite so rosy on the consistency front, however. We may have some more significant issues when it comes to compulsory licensing.

Compulsory licensing is where the government allows a third party to use (or itself uses) a patented invention, paying some remuneration to the patent owner. In other words, the patent owner does not get the normal right of veto they have over others using their invention - but they do get some money. Compulsory licensing of patented inventions is allowed under Article 31 of TRIPS, and we have "Crown use" provisions in our patent laws that enable the government to take advantage of this freedom where there is a need. As the ALRC notes, the Crown Use provisions may be most important as a "stick" or threat - to force an unwilling licensor to the negotiating table.

The ALRC has a couple of suggestions in this area, to make better use of these provisions. For one thing, it suggests (Proposal 26) that the Australian Health Ministers' Advisory Council should develop a policy regarding the circumstances in which it is appropriate for the Commonwealth or a State to exploit a patented invention under these provisions, for the purposes of promoting human health. It also proposes that:

"The Commonwealth should amend the Patents Act to clarify that, for the purposes of the Crown use provisions, an invention is exploited 'for the services of the Commonwealth or the State' if the exploitation of the invention is for the provision of healthcare services or products to members of the public.

The ALRC also asks:

Should the Commonwealth amend the Patents Act to require a patent holder to transfer 'know-how' relating to the patented product or process to the Crown when the Crown uses or acquires a patent under the Act?"

Now look at the FTA.

First, under the FTA, Article 17.9.7 seems to be saying that use of a patent without the patent owner's authorization can only be allowed to remedy anti-competitive practices, or "in the case of public non-commercial use or in the case of national emergendy or other circumstances of extreme urgency". This already seems to limit the freedom of the government already. Would all "provision of healthcare services or products to members of the public" be "public non-commercial use"? I don't think that's entirely clear.

Second, under the FTA, the Australian government isn't allowed to require the patent owner to "provide undisclosed information or technical know-how related to a patented invention". So there goes that ALRC question. This could be tricky: the mere right to exploit may, as the ALRC recognises (at para 26.75) "be insufficient to enable the Ccorwn to use a patented invention effectively or optimally."

Conclusion: there are some issues of consistency here. My major issues with the FTA, however, remain as I have often stated: that this is an entirely inappropriate way to make IP policy, and that there are real issues of democratic participation when the public reviews of IP - for which many submissions were sought and made - are side-swiped by what is going on behind closed doors in trade negotiations.

 
Never rains but it pours. Free Trade Agreement (pdf) and the ALRC on Gene Patenting in Just One Day.

Happy reading everyone. Thanks to Matt Rimmer for sending me the ALRC link.

 
Some points from the Free Trade Agreement - in relation to IP

OK, I've read the Free Trade Agreement chapter on IP now. Not in detail, really, but to some extent. These comments are coming on the back of a single reading. Being an academic, and a lawyer: I reserve the right to modify these initial opinions on a more detailed consideration. But let's put something out there anyway.

Subject to all those provisos: my first comment is: just as I feared (and knew was true) - we've ended up with a detailed, proscriptive agreement that is going to limit our policy freedom in the intellectual property area for years to come. Much of the material in the agreement is stuff we already have - but remember, it is now stuff we have to have. Even if we've decided it isn't working. So, even if (as we know won't happen) the Digital Agenda Review came out and said some of these provisions are disastrous - we can't necessarily change them all or abandon policy decisions made. Lock in.

It's true, as Stephen Fox argued at his ACIPA presentation - yes, there is some freedom in these detailed provisions. In some cases, we only have to have "effective" measures; things need only be done "regularly" - etc. These are words that are subject to interpretation.

That's small comfort for the degree to which we have locked ourselves in. For example, the limited exceptions we have agreed to in relation to our anticircumvention provisions (the ones which make it illegal to break the encryption, or other technological protections, copyright owners put on their works - like the region coding blockages on DVDs). We've got an exclusive list (see further below). And we've agreed to a rather hefty process if we want to add new ones, including Review every four years.

So here's a few edited highlights of the agreement we've reached with the United States:

1. Yes, we have copyright term extension (well, we knew that) of the Mickey-Mouse/Sonny Bono variety. Life of the author plus 70 years. Oh, and this extends to performers' rights as well - they'll now get 70 years from the date of the performance (Article 17.4(4)). I've gone on about this so many times it isn't worth repeating. But see Matthew Rimmer's very accurate remarks on how much of a step back this is for our government: as posted in Lessig's Blog and as in his First Monday Article. Read both. Twice.




2. We are required to introduce a ban on circumventing technological protection measures. As I have explained at some length in a previous post, this abandons a distinct policy position taken by the Australian government, endlessly discussed with stakeholders, at considerable cost to all involved. Currently, under Australian law, (section 116A) we only have a ban on making, selling, importing, trading in devices that allow you to circumvent technological protection measures. Interestingly, however, the treaty differs from the equivalent United States law (section 1201), by stating that the ban must apply to those who circumvent knowingly, or having reasonable grounds to know. No such requirement of knowledge is to be found in s.1201 of the US Copyright Act. (Article 17.4(7)(i)). We have a grace period of 2 years to implement this one (Article 17.12)




3. Another point is worth making on these circumvention provisions. According to the treaty, we have ban making, importing, offering to the public, or trafficing in devices which (a) are promoted, advertised or marketed for the purpose of circumvention; (b) have only a limited commercially significant purpose or use other than circumvention, or (c) are primarily designed, produced or performed for the purpose of enabling circumvention. Notice anything missing? OK, so most people won't, but if you look at our law, section 116A(1)(c), for you be liable, the copyright owner also has to prove that you "knew, or ought reasonably to have known, that the device or service would be used to circumvent, or facilitate the circumvention of, the technological protection measure". In many cases this won't be an issue, of course, but again, this knowledge component was put in deliberately. And it looks like we've agreed to take it out.




4. The definition of "technological measure" is different from our definition under s 10 of the copyright act (see Article 17.4(7)(b)). It's a straightforward inclusion of anything that controls access or protects any copyright. Given the way the Full Federal Court interpreted our definition in Sony this may make not much practical difference, but it is a departure from our law, and, if implemented, could mean any High Court appeal in Sony (if special leave is granted) is a bit irrelevant.




5. In relation exceptions to the anti-circumvention provisions, it looks like we may have to lose some of our current exceptions. The treaty has a list of stated, and exclusive (not inclusive) exceptions to the anticircumvention provisions (Article 17.7(e)). (subject to 'legislative review, to which I will return)




6. Not all our current exceptions are in the list. At the moment, for example, there are exceptions for copying by Parliamentary libraries for members of Parliament (s48A) - this isn't on the list.




7. Our exceptions in relation to libraries look like they will need changing. First, the only library exception refers to nonprofit libraries only: our Act at the moment basically gives the same privileges to corporate libraries as it gives to nonprofit libraries.




8. Next, libraries and archives at the moment have some exceptions: for reproducing (and circumventing to do so) for preservation purposes, or to supply copies of articles for research/study. These don't rate a mention in the FTA.




9. Now, it should be noted, that there is a fall back position. The government can create exceptions, if

   "an actual or likely adverse impact on those non-infringing uses is credibly demonstrated in a legislative or administrativ ereview or proceeding" (Article 17.4(7)(e)(viii)

   And, interestingly, the review does not have to be an administrative one (like the procedure for creating exceptions run out of the Copyright Office in the US). But note three things about this fall-back. First, it has to be reviewed again after four years. We've just had the Digital Agenda Review - after 3 years of the Digital Agenda Act. A frequent comment in that review has been the fact that 3 years is not enough to see effects. Four year reviews are unlikely to be much better. Second, the onus is put on those seeking an exception to prove harm. Harm is notoriously hard to prove in the copyright area. This is, after all, the constant justification copyright owners themselves are always saying. How it is going to be any better for, say, libraries seeking exceptions is pretty hard to tell. Third, the equivalent procedure in the US - run out of the Copyright Office - has hardly been a raging success. It certainly hasn't created many exceptions. Finally - are they saying we are going to have to have an exhaustive policy procedure every four years? Depending on how it is run, this is going to be hard to sustain, particularly for the non-profit sector who, after all, do have better things to spend their money on than lobbying administrative or legislative bodies for assistance or protection from copyright owners. It does seem extraordinary that we should agree to such a thing in such a small market - very regular reviews seem to make more sense in a very large market. But I guess it will all depend on how they are run.




10. Notice also that even the exceptions that are provided in Article 17.4 are subject to a further qualification, in 17.4(10) that requires that exceptions be confined "to certain special cases that do not conflict with a normal exploitation of the work, performance, or phonogram, and do not unreasonable prejudice the legitimate interests of the right holder.". This may not make much difference, but it is another stick that those who disagree with any position taken by the Australian government can use to whack them with. Particularly given a rather restrictive reading given by the WTO Dispute Settlement body of the equivalent provision in TRIPS (Article 13).




11. In relation to patents, we have a number of provisions that will need further consideration. It's notable however that we've promised that we will make patents available for "any invention, whether a product or process, in all fields of technology, provided that the invention is new, invovles an inventive step, and is capable of industrial application". (Article 17.9(1)). Of course, since Australia is pretty generous in granting patents for all fields of technology already, this really a change. Besides, the text mirrors the equivalent provision in TRIPS.




12. Again on patents, this one's interesting: Article 17.9(15): "Each Party shall endeavour to establish a cooperative framework between their respective patent offices as a basis for progress towards the mutual exploitation of search and examination work". Contracting out examinations, perhaps? Hmmmm.......




13. There is a very detailed Article on pharmaceutical products, and the use of information used as the basis for marketing approval by third parties (Article 17.9(10)): it has all sorts of limits on the kind of use that third parties can make of information submitted in this country, or in other countries, to get marketing approval in Australia, and appears at least on a quick read, to extend the protection of the patent holder beyond the term of the patent, to prevent others using the patent owner's testing/safety information. Article 17.9.10(3). Hmmm. will have to look at this more closely.



14. We've agreed to a rather interesting provision on statutory damages. Statutory damages are damages that are basically fixed at figure. They basically provide the IP Owner with an option to choose the statutory damages, rather than have to go through the rigmarole of showing how much damage they've actually suffered. In the United States, these statutory damages can really add up and be very, very punitive in effect. IP Owners in the US can elect for statutory damages, for each infringement of "not less than $750 or more than $30,000 as the court considers just". That really adds up when every song, for example, is an infringement. But we've not actually agreed to introduce statutory damages. Basically, under Article 17.10.7, we have two options. We can have statutory damages "in an amount sufficient to constitute a deterrent ... and to compensate fully the right holder for the harm caused". or we can have "a system of additional damages ... provided that if such damages, while available, are not regularly awarded in proceedings involving deliberate acts of infringement ... that Party shall promptly ensure that such awards are regularly made or establish a system of pre-established damages...". so, in other words, if our (independent) judiciary don't "regularly" award additional damages under s115(4) of the Copyright Act, the government has to step in.

    This issue has some history. Back in December 2000, a Standing Committee of the Australian Parliament issued the Copycats Report. Recommendation 16 proposed that the Copyright Act be amended to provide a system of statutory damages, which would link the amount of statutory damages to the amount of compensatory damages. The Government Response to this Recommendation was that it would make amendments that will encourage the award of relief under s 115(4). Adoption of a statutory damages scheme not accepted. Now, it seems, the government has said - well, if the encouragement doesn't work, then we'll introduce statutory damages. But they will have to be sufficient for deterrence, not just compensation. Compare also the proposed EU IP Enforcement Directive, which proposes either damages set at double royalties or fees which would have been paid if authorisation had been requested, or compensatory damages corresponding to actual prejudice. I'm not sure that "double royalties" would be sufficient to satisfy obligations we've undertaken in the US-Australia Free Trade Agreement.




15. Regarding ISP Liability: yes, there is a provision that is almost four pages long. On a very quick read, it looks like we have some freedom to shape our notification procedure - but we have to have one. That is, we have to have some way for copyright owners to notify ISPs of claimed infringing material, and these processes have to be "appropriate" and "effective". I forsee another policy argument before the government. All I can say is, this negotiation had better not be behind closed doors the way the FTA one was

 
The Text of the US-Australia Free Trade Agreement

Is now available from this site. This (pdf) is the intellectual property chapter. All 29 pages of it. Sigh.

 
Lessig on the Eldred Case

Lessig has a heartfelt, rather moving piece on his "failure" in the Eldred case. Eldred, for those who came in late, is the case where the United States Supreme Court held that the Sonny Bono Copyright Term Extension Act, which extended the copyright term from "life of the author plus 50 years" to "life of the author plus 70 years", did not violate the United States Constitution; in particular, that provision of the Constitution that states:

"The Congress shall have power ... [t]o promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries." (Article 1 Section 8.1)

Professor Lawrence Lessig was the power behind this case, and argued the case in the US Supreme Court. He lost, 7 judges holding that the law was valid (2 justices dissented).

It's a very interesting, and saddening piece, and should be read by anyone wanting an insight into the case. I agree with the many - I'm not sure the case could have been won or played differently. In particular, Lessig bemoans the fact that he did not make the court feel the case was important, at a basic, factual level. But the briefs were there; the petitioners were there. I'm not sure how much more strongly that case could be made, and I'm not sure how far you can move against a meme that sees "copying" as somehow a "bad thing". In any event - worth a read.

 
Quiggin on copyright and copyright term extension - and dead authors' families

Quiggin has a post on copyright and copyright term extension in particular, noting the basic question that has been asked, repeatedly and with good reason: what incentive does term extension really create - and what harms does term extension cause?

Personally, I see little, if no benefits from term extension in Australia, while seeing plenty of downsides. There is particularly no benefit at all to retrospective term extension - eg term extension for authors already dead. At the ACIPA Conference the other week, the position put forward by the Australian Government (Philip Ruddock in his opening speech, and Stephen Fox from AG's in his talk about the Free Trade Agreement) on this one was basically - well, this is the emerging international standard, used by most of our key trading partners (US, EU being notable here) - in effect, it is inevitable so we should just do it.

The inconsistency of this viewpoint with every comment by the Australian government or policy advisory bodies leading up to the Free Trade negotiations has been outlined fairly comprehensively by Matthew Rimmer - who has an article on the issue, and whose comments are up in Lessig's Blog here.

One thing that Quiggin points out is the Ulysses story: the story about Joyce's grandson putting obstacles up in the way of readings of Ulysses on the 100th Anniversary of Bloomsday. The interesting thing about this is, as I was talking to David Brennan about the other day, it often seems that the families of dead authors are particularly restrictive when it comes to these sorts of things. This is one problem with the copyright after death thing: it may be that families build virtual copyright 'shrines' to the memory of their dead relatives. Beckett's family are notorious for their restrictive attitude about what can be done, and I'm sure there are other examples that are not presently springing to mind. I wonder whether, at least in some ideal copyright world, some disinterested body ought to be involved in this sort of decision. There is, after all, no real reason why relatives of long dead authors - particularly grandchildren who in at least some cases would not have known their grandparent well - are likely to make the best decision for society on future use of copyright works....