Update: the AG's speech from last Friday is available online.

Philip Ruddock's speech from the ACIPA Copyright Conference is now available online (see further my post below). In it, he announces the review of copyright exceptions in Australia. Read the description of the review in his own words, not mine!

 
No press release, but an announcement at least...

All last week the AG, Philip Ruddock kept us in suspense after the SMH claimed he had 'announced' a review of copyright exceptions, including the basic question whether Australia should have an open-ended defence to copyright infringement, along the lines of the fair use
defence under s 107 of the US Copyright Act.

There's still no press release that I can find on the AG's website, but at the ACIPA Conference last Friday, 18 February, Copyright: New Futures, New Agendas, Ruddock gave the opening address and he confirmed that there will indeed be a review on the questions of copyright exceptions.

According to the AG,

• the review will consider the question whether we should have an exception based on principles of fair use;
• the review will be conducted in house, by the AG's department (in other words, the CLRC is NOT going to be getting this reference);
• The AG will be releasing a Discussion Paper, probably in April
• A wide set of issues will be open to discussion
• No decisions have yet been made, and no decisions will be mdae without full, public consultation (in other words, there will be an opportunity to make submissions; start thinking about what you want to say now).

The AG also announced a number of other issues on the agenda in the next twelve months:

• a review of the 1% cap on fees paid by broadcasters to copyright owners for playing sound recordings;
• whether unlawful reception of satellite broadcasting should be criminalised (this is an issue because under the FTA, we are meant to criminalise it, but we've not done so at this stage);
• whether the criminal offences under the Copyright Act need to be updated in light of the principles in the Criminal Code
• the question of resale royalties, and whether Australia should have a resale royalties system;
• Directors' copyright (legislation will be released in the first half of the year) and
• Indigenous communal moral rights (an exposure draft of such legislation has been floating around for a while now, but not publicly; the AG is planning to release legislation in the first half of the year on this issue).

Interestingly, the one thing that was NOT mentioned was the anti-circumvention provisions under the FTA. Under the FTA, we have to amend our anti-circumvention laws (the laws that make it illegal to break technological protections used to copyright owners to protect and control their works), and we have to do that by 1 January 2007.

I asked a couple of government people about this (and when it was going to be reviewed) and got mixed responses. One person pointed out we had two years to implement it (suggesting we had a bit of time yet to do any review), and several others said 'well, the AG can't mention everything in one speech'. In other words, just because it wasn't on the list, doesn't mean it won't come up this year. In any event, no doubt it will be discussed in the context of the fair use review.

Other parts of the ACIPA conference were also interesting. To my mind, the two most interesting presentations were those of Manon Ress, from the Consumer Project on Technology, and that of Robert Burrell, from Uni of Qld and ACIPA.

Ress's presentation was interesting mainly for some of the stuff she said in response to some questions. One thing I thought was particularly interesting was her view that the Developed Countries were actually angry about the passing of the WIPO Development Agenda. She noted that the recent meeting organised by the US Patent and Trademark Office on patent law harmonisation, which I blogged about here, and to which developing countries were not invited, was a deliberate threat to both developing countries and to WIPO - act this way and we will just ignore WIPO and get on with our agenda outside your organisations.

Burrell's presentation was the most amazing summary and analysis of all the issues facing us in considering a fair use defence. Burrell's basic thesis was that a fair use defence would improve Australian copyright law in various respects, BUT (a) there are a number of important issues to consider, and (b) focusing on fair use may distract from other reforms needed post the AUSFTA. Burrell's suggested approach was to first, identify the actual problems that we have as a result of the FTA (copyright term extension, ISP over-enthusiastic take-downs, TPMs and contracting out) and deal with them.

I agree with much of what Robert has said. I'd add this however: that while it may well be very worthwhile to try to identify what the specific problems are, and draft a defence to respond, that still won't detract from the need for a flexible exception. In my ideal world, we'd do both, because some things can't be predicted.

 
Fair use/exceptions review - is it happening? Really?

Still no official word on this story - that the Attorney-General was announcing a general review of copyright exceptions, fair use, including medium shifting, which was in the Herald on Tuesday. No press release. Nothing. Nada.

I'm hoping that all will be revealed at the ACIPA Conference in Brisbane Tomorrow on New Futures, New Agendas. AG Ruddock is due to speak...

 
The Fair Use Review has Arrived

The Attorney-General's Department has announced a 'wide-ranging review of copyright laws' which will look at the question whether Australia should have an open-ended fair use defence, perhaps like the US fair use defence, as opposed to the confined set of fair dealing defences that we now have in the Copyright Act.

According to the SMH, the Attorney-General, Philip Ruddock, made this comment:

"There's a reasonable argument for putting forward the opinion that when someone has bought something in one format and has acquired the copyright for it in that particular format then there is a fair use for them to take it to another format. I think it's a strong argument,"

There's another story here.

I've not yet found any press release on the review, or any details of the review: if anyone can point me to a link, that'd be great.

For some background on these issues, see a couple of posts from last August on this blog:

• "Fair Use vs Fair Dealing Debate from the Other side of the Atlantic (August 26 2004)
• ADA and ALCC Joint Submission on Fair Use (August 25 2004)

 
It's raining patent judgments...

Not quite on the level of significance of the Viagra judgment which I blogged below, but perhaps very important being in Australia and all. Justice Jacobson has revoked a whole lot of claims from a patent for synthetic bowling green surfaces "the kind used for lawn bowls, croquet and the like". The claims were:

• not fairly based
• not novel and
• obvious

The case is Synthetic Turf Development Pty Ltd v Sports Technology International Pty Ltd [2005] FCA 69.

 
Judgment in the Viagra Patent case!!!

Justice Heerey has handed down (a few days ago - 10 Feb - I'm slow!) judgment in the Viagra patent case. Pfizer has a patent (Australian patent number 676571) which covers "Pyrazolopyrimidinones for the Treatment of Impotence" (don't you just love scientific words?). Basically, it's the Viagra patent.

The patent has a number of claims. Of the relevant ones (1-10), most covered use of a particular set of compounds to treat impotence. Claim 8 specifically covers sildenafil monocitrate, the active ingredient in Viagra.

Claim 10 of the patent, though, sought to cover:

"method of orally treating man to cure or prevent erectile dysfunction in man in need of such treatment, which comprises treatment with an orally effective amount of cGMP PDEV inhibitor, or a pharmaceutically acceptable salt thereof, or a pharmaceutical composition containing either entity"

This is a really important claim for Pfizer, because it seeks to cover all of the PDEV inhibitors. In other words, Claim 10 claims the use of all compounds which have a certain physiological effect. It is the only claim that might be infringed by Eli Lilly's product Cialis. According to some news reports, there are also other products in development using the same mechanisms.

Justice Heerey has held that claim 10 is invalid because it is obvious, and it is not fairly based on the specification (although it is novel, not insufficient; is a method of manufacture, does disclose the best method and was not obtained by false suggestion). Justice Heerey did hold that if the claim were valid, then sales of Cialis would infringe.

 
This is a good thing.

 
Isn't it great to have serious IP people blogging... they can deal with the 1c license fee cap stuff...

I like Warwick Rothnie's blog. It deals with serious stuff, including some stuff that I miss. And it deals with that stuff without some of the blabbing-on commentary I put in. Of course, he's a much more serious IP person than me.

So it's through Warwick's blog that I find out that AGs have released a discussion paper on whether the one per cent cap on copyright licence fees paid by radio broadcasters for playing sound recordings on the radio should be retained here. For commentary on this - I can't be bothered right now. So I'll leave this one to Mr IP Wars himself. Read Warwick's post.

 
Open Source Biotech - is it really happening?

This story in Wired suggests it is. The people to watch in this space are Science Commons, over in the US, and Australia's own Janet Hope, from the ANU, who really knows her stuff on this.

 
Substantive Patent Law Harmonisation

I missed this: on 3-4 February 2005, a meeting was held in the US, rather grandly titled "An Exploratory Meeting of Interested Parties Concerning the Future of Substantive Patent Law Harmonisation".

It came out with a "Statement of Intent", as follows:

1. The Participants ("Participants") of the Exploratory Meeting of Interested Parties Concerning the Future of Substantive Patent Law Harmonization, held February 3-4, 2005 in Alexandria, Virginia, wishing to promote and facilitate progress on certain key issues under consideration in the World Intellectual Property Organization (WIPO), agree to convene future meetings to consider:
   
   (a) substantive patent law harmonization issues, notably the Trilateral "first package," as developed by the United States Patent and Trademark Office, the European Patent Office and the Japan Patent Office and set forth in WIPO Document WO/GA/31/10; and
   
   (b) issues with regard to intellectual property and development, including proposals for a WIPO Development Agenda and proposals relating to genetic resources, with a view to seeking a common basis for further discussions in WIPO;
   
2. The Participants agree that the following parties will be invited to participate in the future meetings: all Members of WIPO Group B, Member States of the European Union, the European Commission, Member States of the European Patent Organization, and the European Patent Office;
   
3. The Participants further agree to have regular, intersessional meetings of subgroups to address the issues reference in Paragraph 1.

Just in case you are wondering, the "First Package" is a set of 4 issues. The US and Japan have proposed that work begin on harmonising these aspects of substantive patent law, with a view to concluding a treaty "as soon as possible", leaving other issues to one side. Those 4 issues are:

1. The definition of prior art;
2. The Grace period;
3. Novelty;
4. Inventive Step/Non-obviousness.

If harmonisation on these issues were achieved, that would be a helluva step forward in terms of substantive patent law harmonisation. I don't necessarily think these issues would be easy to harmonise on, of course.

And, again just in case you were wondering, "Group B" (the invitees to these meetings) are, as I understand it, the developed countries.

Australia is apparently going to be hosting the meeting to progress work on some key technical elements of substantive patent law harmonisation (prior art, grace period, novelty and inventive step). We live in interesting times indeed!

[Update: In related news, I note that several commentators (see Matt Buchanan; IPTABlog) have suggested that 2005 could be patent reform year in the US, with the possibility that a critical mass is building for real reform of their broken system...]

 
He He - Edward Felten on copyright education

This post is worth reading. A sample:

"Telling nine-year-olds that they have to understand copyright before they can use the Internet is like telling them that they have to understand employment taxes before they can run a lemonade stand.
....If I were [a fourth grade] teacher, I would prefer simpler questions like "Why are people mean to each other?" and "How did the universe start?"

 
Trade marks and human rights???

It's often seemed to me that the attempt to make legal regulation of trade marks a human rights issue was a tad overstated. While I can buy the 'patents implicate human rights' argument (one only has to raise the access to medicines debate to believe this), and even the 'copyright implicates human rights' argument (especially with increasing DRM), the 'trade marks implicate human rights' argument always seemed a bit weak. After all, though you often have stories about trade mark owners suing people to silence criticism, generally, it seems that these overly-rabid property owners lose. That doesn't mean such suits aren't a problem - just that it's a smaller problem than people (or, at least, academics) make out.

So when I read this news (via IPKat) - that a trade marks case is going to the European Court of Human Rights, I wondered - am I about to be proved wrong?

Sadly, no.

It's a company (Anheuser-Busch, the largest brewer of beer in the world) suing Czech company Budejovicky Budvar NP, over whether the Czech company can sell their Budweiser Budvar beer. The case is in the Human Rights court because Anheuser-Busch is arguing that a Portugese Court, which found for the Czech company, is interfering with Anheuser-Busch's 'peaceful enjoyment of property' - ie its trade mark. This really isn't a human rights issue, frankly.

Anyway, it's worth noting in passing we've already had the Bud case here in Australia. This is one of those worldwide trade mark disputes (like the Philips v Remington cases over the 3 headed shaver). They're not as common in trade mark as they are in pharmaceutical patents, but they do exist.

 
Splitting the baby on P2P and copyright

Ed Felten responds to a David Post post, predicting what will happen in the US Supreme Court in Grokster. (Grokster is the case where teh US Supreme Court will address the liability of P2P providers for copyright infringement; it is analogous, although emphatically NOT the same as the Kazaa litigation going on here).

Interestingly, the Post prediction (backed, to a certain extent, by Felten) is something that could also happen here. They are predicting possible liability on inducement/abetting theory. In Kazaa, the record companies are suing on an 'abetting' theory. So it's possible that 'abetting' could be found, but authorisation liability avoided...

 
Sony in the High Court

[update: The transcript from the High Court hearing is now up on AustLII. One thing I didn't realise was that the High Court has allowed parties to make written submissions on that issue of what "access" means (blogged below). Interesting!!!]

Yesterday, the High Court (sitting as a 6 - everyone except Callinan J) heard the appeal in the case of Stevens v Sony - ie, the case which will decide whether mod-chipping a Sony console is a breach of the anti-circumvention laws, on the law as it stood prior to the FTA Amendments that came into effect on 1 January 2005.

The actors in the case are Sony (represented by David Catterns QC and Richard Cobden SC), suing Mr Stevens (represented by Nicholas QC and Christian Dimitriades), who offered a service for mod-chipping Sony PlayStation consoles. In the lower courts, the ACCC appeared as an amicus curiae, although they did not appear in the High Court. The High Court gave the ADA/ALCC leave to appear as amicus curiae (represented by John Basten QC, Glenn McGowan QC and Lisa De Ferrari) in the High Court appeal (Full disclosure: I gave some pro bono assistance as a consultant/brains trust for the ADA/ALCC in preparing their submissions to appear as amici in the case; I've also published on the case in the Sydney Law Review (pdf)).

I thought it was an interesting hearing - the High Court seemed genuinely interested in the issues raised by the case, including the broader issues being raised by the amici, although my impression is that, like everyone who has ever had the misfortune to try to construe these provisions, they were having trouble getting their minds around the issues and the meaning of the text in the case. (as an aside, my impression is that the High Court are really itching to get a decent fair dealing case in front of them. ... hint hint hint). Some solid questioning of the Sony position, was also my impression, although of course David and Richard, as always, put up a good case.

Amusing moment of the day: watching a PlayStation game on the wall of the High Court courtroom (I wonder do the Associates get to play with it afterwards...?)

There were (are) umpteen million interesting legal questions in this case, but some of the legal questions in are:

• what does 'access' really mean when used in the context of the definition in s10(1) of 'technological protection measure'? As Gummow J put it, it is clearly being used as a metaphor for something, but what?
• in particular, what does 'access' mean in the context of a computer program? I really hope that the High Court does not succumb to a temptation to find that you 'access' a computer program when you run it. That kind of confusion was dispelled by cases like Skylink and Lexmark(pdf) in the US; let's hope it doesn't spread over here;
• how do you judge what constitutes a 'substantial part' (under s 14 of the Copyright Act) in relation to Part IV subject matters? In particular, can you take into account the purpose of the taking, or not? According to Sony, you don't take into account the purpose of the taking. In fact, Sony appeared to be arguing that as long as you had more than a de minimis part taken, that was sufficient. This is contrary to the view of Ricketson, expressed in his copyright looseleaf; it is contrary to the view of Lahore, expressed in his looseleaf; it is also contrary to the judgment of the Full Federal Court in Nationwide News (see para 91).
• is the Sony mechanism really analogous to the AutoCAD lock? Sony makes much of the AutoCAD lock; as did Lindgren J at first instance in the Full Federal Court. To my mind, they are not as analogous as they are made out to be, but that will be an issue that the High Court will be grappling with...

All in all, an interesting case, and an interesting hearing.

 
Oh dear.

via Brendon Scott - The Record Industry has sued a dead woman for file trading. Apparently, they thought that Gertrude, who was 83 when she died in December, was trading songs as 'smittenedkitten'.

oops. I suppose these things do 'appen.

 
Sony PlayStation and Region-Coding

With the Sony case imminent in the High Court of Australia, it's worth pointing to this post over at Copyfight, on Sony PlayStation region-coding. Complete with link to instructions on how to overcome the region-coding...

 
New Blog Aggregator for the Linux Australia World

The launch of Planet Linux Australia has been announced - a site that attempts to group together the weblogs of Australians working in the FOSS (ie Free and Open Source Software) community. Find it here.

 
EU Parliament Committee voting against the Software Patents Directive

Interesting news indeed:

"Members of the European Parliament have voted overwhelmingly to ask the European Commission to withdraw draft legislation which, critics say, would open the door to allowing patents on pure software.
The decision, made at an impassioned meeting of the Parliament's legal affairs committee on Wednesday, is primarily a victory for the opponents of software patents who have been lobbying members to restart the legal procedure on legislation to insert safeguards against pure software being patented. "

This isn't an end to it all. The commission apparently has 3 options:

1. comply with Parliament's request and not table a new proposal (leaving matters as they stand now, where software isn't patentable 'as such';
2. wait until the normal legal procedures are followed whereby the European Parliament would have a second chance to revise the deal adopted by the Council of Ministers, made up of national governments, before deciding whether to make changes to the proposal (but given the opposition, this seems unlikely); or
3. delay for a while, to consider the impact of the proposal.

An FFII report on these developments can be found here.

 
Two New Patent Office Decisions

IP Australia have released two new patent office decisions, regarding two petty patents relating to those glasses that have the clip on sunglass lenses so you don't have to have two pairs of glasses ("clip ons"). The Office has found that:

• in relation to Petty patent 729803 the opponent failed to establish that the claimed invention does not involve an inventive step, or that claim 24 is not fairly based on the matter described in the specification;
• In relation to the other petty patent, the notifier also failed on their argued grounds: lack of inventive step.

As a result, both patents are valid and an extension of the term of the petty patent was granted. Note that this decision applies Lockwood reasoning on fair basis, albeit without extensive discussion!

 
Librarians' Principles on Copyright

The Association of Research Libraries has drafted a set of principles for the International Development Agenda of the World Intellectual Property Organisation. They're succinct and thought-provoking. They include such principles as:

• All works created by governmental authorities should be in the public domain (our law is not consistent with this)
• Published works resulting from government-funded research should be publicly available at no charge within a reasonable time frame (this sometimes happens, but is not mandated)
• Facts and other public domain materials, and works lacking in creativity, should not be subject to copyright or copyright-like protections (our law is not consistent with this)
• A work that has been lawfully acquired by a library may be lent to others without further transaction fees to be paid by the library (our law is partly consistent with this)
• In support of preservation, education or research, libraries and educational institutions may make copies of works still in copyright but not currently the subject of commercial exploitation (our law is partly consistent with this)
• Copyright laws should not inhibit the development of technology where the technology in question has substantial non-infringing uses (this is the Kazaa issue; it is not clear what our law is on this yet)
• Copying of individual items for or by individual users should be permitted for personal research and study (our law is consistent with this)
• It should be permissible to circumvent a technological protection measure for the purpose of making a non-infringing use of a work (our law is currently consistent with this, although you can't get a device to do the circumventing legally. Our law will probably not be consistent with this once the FTA is implemented)
• The goals and policies set out in this document should not be over-ridden by other bi-lateral or multi-lateral agreements (FTA, anyone?)
• The goals and policies set out in this document are important statements of national and international principle and should not be varied by contract (only in relation to computer programs have we stated this as a principle, but see the Copyright and Contract Report by the CLRC)

As you can see, we don't score well on the ARL principles.

 
Lessig's back blogging.

This is worth reading and thinking about. So is this.

 
More on orphan works

UPDATE: Lessig has commented on this too, and has in his post links to other comments. And is calling on people to make comments. Perhaps I might also suggest that if people have Australian stories about these issues, they can email me (k dot weatherall at unimelb dot edu dot au). We should be thinking about a similar issue being raised here. The Australian government said that it would inquire into the question of whether we should have a fair use defence. Such an inquiry might be an opportune moment to raise the orphan works question in Australia.

I blogged last week on the US Copyright Office Request for Comments on orphan works. Now, via Michael Geist, a link to information on the Canadian system for unlocatable copyright owners. Basically,

"if you wish to use a published work in which copyright subsists and if you satisfy the [Copyright] Board [of Canada] that you have made reasonable efforts to locate the copyright owner and the owner cannot be located, the Board can issue a non-exclusive licence authorizing you to do what you wish to do"

Wouldn't that be an improvement! Still, wouldn't address the problems that Jaszi and Aufderheide have found.