I wish I could make this forum...

I'll plug it again, because it is worthy of being plugged: I wish I could make the open source forum in Sydney on Thursday, 2 June, on anti-circumvention laws. Meetings prevent me. I look forward to the feed. If you are in Sydney, or can make it there, and are interested in what will be the next issue in copyright - go. do not collect 200. just go.

 
Googlezon and Copyright

A while ago, I linked to the clever short (8 min) flash movie, EPIC - that postulates a world changed by new media. 'EPIC' stands for The "Evolving Personalized Information Construct" - "the system by which our sprawling, chaotic mediascape is filtered, ordered and delivered. Everyone contributes now - from blog entries, to phone-cam images, to video reports, to full investigations." The movie postulates a world in 2011, where the news outlets of the world lose control in the face of 'Googlezon' - an entity formed through the combination of Google and Amazon, which invents a clever new technique that tailors news content to the user: "Googlezon's computers construct news stories dynamically, stripping sentences and facts from all content sources and recombining them. The computer writes a [personalized] news story for every user."

The movie predicts that in 2011, the New York Times and other media whose content is not customized to the user go the Supreme Court, "claiming that [Googlezon's] fact-stripping robots are a violation of copyright law." In the movie ... well, to reveal the result would be to spoil the ending, wouldn't it? Go watch the film. It's short, clever, and thought provoking.

Now Julie Hilden at Findlaw has a contemplation on the various copyright issues involved (warning, she does spoil the ending... so watch the movie first).

Hilden is writing from a US legal perspective, appropriately. But reading her column got me thinking - because our law on copyright is different, and might lead to some different outcomes. So there's some value to thinking about the issues from an Australian perspective, too:

First, could the New York Times argue that copyright in material in newspapers protects the originality of the material in the newspapers - originality being measured, in accordance with Desktop Marketing, as the combination of originality of expression, but also the investment - the blood, sweat and tears - of the creator of the newspaper. Here Australian law differs from law in the US, in the sense that we understand 'originality' differently, and as more readily linked to investment and effort, not just expression. If facts from online newspapers are stripped, and combined, is the fact-stripper (Googlezon) taking the 'originality' of the work? Arguably yes, in Australian law. Arguably infringement would be easier to find under Australian law than under US law - although it's by no means a clear case. Of course, this renders all the more pertinent Hilden's claim that:

rather than being an engine of plagiarism, Googlezon's fact-stripping bots might be better seen as an engine of compilation.
Making compilations like this illegal, as copyright infringement, would challenge the status of a lot of traditional research - such as virtually any doctoral thesis, nonfiction book, academic paper, and on and on. For this reason, I agree with Sloan and Taylor that the Supreme Court would likely rule for Googlezon - not "old media" - in its Supreme Court case.
But it's also possible the Court - or, ultimately Congress, in the wake of the Court's decision - would rework copyright in a way that better fits the Internet.

(Hey, that means that perhaps our courts are not behind the times with their decision in Desktop - they're ahead of their times - they are creating a copyright law more fitted to the Internet than the US law, according to Hilden...)

A second issue is whether a defence would apply here - could Googlezon claim, even if it were infringing, that it was doing so for the purpose of 'reporting news' and was thus engaging in 'fair dealing'? Arguably yes, right? It is reporting news to its readers. But then, of course, the question becomes whether the use is fair. Now, the Full Federal Court focused very little on the question of fairness when they made their decision in The Panel case a couple of years back. Would a Googlezon type case cause them to rethink that approach? Perhaps. Arguably the whole dealing envisaged would act as a complete substitute for the traditional media, and hence is a kind of leach...

Oh, and by the way. What kind of infringement is it when a 'robot'/electronic spider does all the selection, clipping together, and delivery....?

 
Full Federal Court Patent Decision

I kept hoping that Warwick Rothnie would cover this one on his blog, because I'm far less expert in patent law than I am in trade mark or in copyright - and besides, the current issues that I'm obsessing about are mostly in the area of copyright (fair use/fair dealing, directors copyright and performers rights) and trade mark (enforcement and teaching duties).

Anyway, on 23 May the Full Federal Court (Hill, Finn and Gyles JJ) handed down their decision in Jupiters Ltd v Neurizon Pty Ltd [2005] FCAFC 90, an appeal decision on a patent case.

The first thing that strikes you about the case is it must be Australian - it's about patents in relation to electronic gaming machines. Gambling is such big business in Australia, and the oppositions process in Australia seems constantly clogged with gaming decisions - so seeing something in the courts doesn't surprise me in the least.

In essence:

• Neurizon owns a patent for a prize awarding system for use with electronic gaming devices, invented by Steven Johnson, the principal of Neurizon;
• Jupiters (as many would know) runs casinos. Jupiters developed a prize awarding system called 'Cougar', which it used in its casions. Neurizon complained that Cougar infringed its patent. Jupiters cross-claimed for things like breach of contract, breach of confidence, breach of fiduciary duty, and also for an order revoking the patent.

At trial, the primary judge found:

• there was infringement of certain claims of the patent
• the patent should not be revoked;

Then Jupiters modified Cougar, and Neurizon complained that this, too, infringed the patent. The Trial judge agreed - there was infringement by modified Cougar too.

On appeal the Full Court:

• Dismissed the appeal against the finding of infringement by both Cougar Modified and Cougar Unmodified;
• Upheld the appeal on the issue of revocation, and remitted to the primary judge on the ground of obviousness.

While it was obviousness that was the ground sent back, the more interesting discussion by the Court relates to the issue of novelty - and, in particular, the long discussion of the prior art base as it relates to information made publicly available through the doing of an act under s 18(1)(b)(i) of the Patents Act.

A patented invention can be anticipated by prior art which is not a document, but an act done in public. However, the 'act' won't give rise to anticipation unless it discloses the features of the claimed invention.

The question the court had to address was whether, when certain gaming systems were operating at several casinos, that operation made relevant information publicly available, so as to be included in the 'prior art base' against which novelty is assessed. The problem, of course, in this scenario is that just by looking at a gaming machine, you can't tell the operation 'behind the scenes' that determines when jackpots are paid.

The Court held that the operation did not make information part of the prior art base, because there was no evidence that such operation made any 'enabling disclosure' of the invention - and, in essence, there was insufficient evidence on any other 'disclosure' that might have occurred to employees or other commercial parties of more detail than you could get by just watching the system in operation. As the judges put it:

'The question as to what information was made available by Jupiters to its customers remains. no direct evidence was given on the point. We have held that mere observation of the system in operation by a person skilled in the art would not disclose the features about it which woudl anticipate the invention claimed here. However, it is quite possible that the essential features of the system would have been disclosed to personnel ...

The evidence taken at its highest for Jupiters would not be sufficient to establish enabling disclosure [of either program]. Thus, neither forms part of the prior art base..."

 
More on fair use review

Alex Malik has an op-ed on themusic.com.au which seeks to give advice to people wanting to make submissions in the government's review of copyright exceptions. While I don't agree with Alex on everything, a couple of points that he makes there bear repeating. As Alex points out:

• You don't need to be an academic, lawyer or have a vested interest to make a submission. You don't need to use complex jargon or legalese. Don't be intimidated by this process - it is designed so that the public can contribute to the process
• After you've looked at the papers, think about the issues and make up your own mind about what you want to say. You don't need to focus on all of the issues in the paper - only on the issues that are important to you. A submission can be as short as long as you like. There is no word limit. It can contain references and footnotes, but it doesn't have to
• If you have a music industry background, or are a recording artist don't forget to tell the Government about your background. They are especially interested in people working "at the coalface" of creativity

Read the whole thing at themusic.com.au.

 
The Panel case (back in the Full Federal Court after its little sojourn higher up) is down

The Full Federal Court has handed down their decision in The Panel case, as Rothnie has noted. And indeed, as Rothnie also notes, the case is important because there are relatively few cases in Anglo-Australian law which have considered what constitutes a 'substantial part' of a Part IV subject matter.

Rothnie explains a little background to the Panel case. It's all about the Channel 10 show, with a bunch of people sitting around a table laughing over the weekly news and, sometimes, showing little excerpts from other people's programs shown during the week. It's comedy, it's light commentary on the week's news, broadcasting, and events. It's been up hill and down dale: we had 2 trial judge decisions, a full federal court decision, it then went up to the High Court, and once they re-defined the meaning of broadcast, it came back down to the Full Federal Court to determine whether Channel 10 had taken a 'substantial part' of the Nine broadcasts.

Unfortunately, one of the results of the way the case has gone is that the Full Federal Court determined the fair dealing defences before they determined what a substantial part was. That's unfortunate, because normally, you would expect the 'substantiality of the part taken' to feed into the fair dealing analysis. It hasn't. And I think the coherence of the whole analysis does suffer a little as a result.

Substantial part in relation to part IV subject matters

Anyway, now we have another judgment (and there aren't many in the common law world) on what constitutes a substantial part of a Part IV subject matter - and that matter a broadcast.

Under copyright law, you don't infringe unless you take a 'substantial part'. The Trial Judge had decided that the few seconds taken in each case couldn't, on any view, count as a 'substantial part' of the Channel 9 programs. The Full Court has overturned that finding, and some of the results - 6 of the takings were of a substantial part. The other five were not.

In essence, it looks like the FFC have moved towards the tests usually used in Part III subject matters - that is, they look at both quality and quantity, and the important issue is whether the part taken is 'the heart' or 'central' to the broadcast:

'It is now clear that the starting point for any enquiry into substantiality is not, as the judge would have it, "primarily quantitative". Nor is the principal enquiry whether harm has been caused to the plaintiff’s commercial interests. The first thing that must be done is to look at the part taken, compare it with the copyright work and ask whether it is possible to conclude from that comparison whether that part is a "substantial part" of the plaintiff’s programme. The question will often boil down to one of the following (dependent on the type of programme): Does what has been taken amount to "essentially the heart" of the copyrighted work?...Is what has been taken "the essential part of the copyright work?" ... Is what has been taken "at least an important ingredient" of the copyright work? ... Have the best scenes been taken from the programme? ...Are the excerpts "highlights" from the programme? ...Are the excerpts central to the programme in which it appeared? :...Does the portion used "constitute the ‘heart’ – the most valuable and pertinent portion – of the copyright material?" ... [a whole bunch of cases were cited here - interesting, all American. I've left the full citations out]

Hely took a similar view, talking about the 'potency of particular images, or sounds, or both', which:

'invites an assessment of the relative significance in terms of story, impact and theme conveyed by the taken sounds and images relative to the source broadcast as a whole. Whether the part taken represents one of the highlights of the source broadcast has a bearing on that assessment as does whether the Panel Segments were ‘distinctive of’ or were ‘recognisable’ as having come from Nine’s broadcast. '

So it's all about significance of the excerpt to the overall program. That kind of makes sense. Although, we are not talking about "significance" here in terms of "well, if it's the final try of the grand final, or the goal of the soccer game, or if it is the images of the plane going into the Twin Towers, then it's the 'heart' or 'core'. On Finkelstein's approach (which prevails here), programs quite apparently have 'many hearts' or 'many cores' or 'many essences' - if the excerpt can be called even a "little highlight", that's enough to make it a substantial part.


The relevance of purpose

Notably, Hely also specifically rejected the argument that the 'purpose' of the taking is relevant to whether a substantial part has been taken at all. This is interesting because this same question came up in the High Court hearing in the Stevens v Sony case - whether the purpose of taking (a cinematograph film in that case - another Pt IV type of work) was relevant to the assessment of a 'substantial part'. Sony in the case argued that purpose of taking was irrelevant. Hely seems to agree. This is quite different from the view presented in the Ricketson & Creswell looseleaf on copyright.

My colleague David Brennan will be pleased though. Because one thing the Full Federal Court have done is that they have moved away from the suggestion, found in Conti J's judgment at first instance, that whether a substantial part is taken is to be judged by reference to whether the 'takee' (copyright owner) has suffered economic harm as a result of the taking. Economic harm may be helpful in judging whether a taking is fair, but it doesn't make much sense as a yardstick of whether the taking was of a substantial part.


Differing results...

Interestingly, of course, this focus of the Full Federal Court on whether the 'heart' or a 'highlight' has been taken means that reasonable minds may differ on the result:

• one excerpt fromthe 'Inaugurual Allan Border Medal Dinner', showed McGrath not noticing the efforts of the PM to congratulate him as he went to receive the award. Finkelstein (Sundberg agreeing) thought this was a substantial part, because it was the part showing the winner and the winner's reaction to being announced as the winner. Hely J, on the other hand, said that it was only 10 seconds of a 2 hour program, and 'does not include any critical moments or highlights of the original broadcast such as Mr McGrath receiving the award or giving his acceptance speech'.
• another exceprt showed Glen Lazarus performing a cartwheel in post match celebrations of the NRL grand final. Finkelstein thought this was a substantial part because Lazarus was playing his very last game of rugby league, and was able to celebrate it with a 1999 grand final win. Hely J thought this was not a substantial part because it did not show any of the game, was incidental, trivial, inconsequential and insignificant.

Moral of the story

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

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

(Please note tongue in cheek nature of this. Unfortunately, however, it's only part tongue in cheek. The words you use in your intro and commentary on a clip do appear to make an inordinate amount of difference on the approach that the Full Federal Court has taken, both on substantial part and on fair dealing. Sigh.)


Aaarrgghh that word piracy.

One final point. Justice Finkelstein, in his judgment, uses the concept of 'piracy' (see para 8). TIn fact, he doesn't just use it. He makes very extensive use of the concept, and appears at times to rely on it, although from a close reading, I suspect 'piracy' as used in different parts of his judgment has slightly different meanings.

The use of this concept is extremely unfortunate. To my mind, 'piracy' should be confined, in essence, to counterfeiting cases. Every other use of the term 'piracy' tends to lead to it becoming more and more meaningless - and makes it harder and harder for those not wanting absolute copyright rights to condemn what really is the bad stuff - that is, counterfeiting. So please, judges - do not buy in to the broadening of this term. Let's be exact. It's just too emotive and rhetorical a word to be appropriate in any case of copyright infringement which is less clear cut than a straightforward counterfeiting.

 
Copyright exceptions review - my background paper

A background paper (pdf) to a talk I gave last week at the Arts Law Centre/Arts Management Advisory Group event, SNAPSHOT 3, is now available on IPRIA's website. It's just an overview of 'what the issues are' in the copyright exceptions review - it doesn't purport to provide a whole lot of answers to anything.

 
IP Mavens - take a glance across the Atlantic for some interesting patent developments

There really is some interesting stuff going on in relation to patent at the moment, over in the US. And it's all being tracked on the Promote the Progress blog.

A patent reform movement hs been building for some time. For a more complete 'primer' on patent reform in the US, I highly recommend this primer from J Matt Buchanan on the Promote the Progress Blog. The movement got a big kick in the pants from three recent 'events' or developments:

• in 2003, the Federal Trade Commission issued its report, To Promote Innovation: The Proper Balance of Competition and Patent Law and Policy. The report made 10 recommendations for reform, including the introduction of an opposition procedure, reducing the presumption of validity in the courts to a 'balance of probabilities' test, and limiting the award of treble damages in patent;
• in 2004, the National Academies in the US issued their report on patent and patent reform, called A Patent System for the 21st Century. It, too, made a number of recommendations, including again, the introduction of an opposition procedure, the 're-invigoration' of the non-obviousness standard, and the introduction of a research exception;
• last year also, Jaffee and Lerner published their book, Innovation and its Discontents on how to fix the patent system

Now, this year, action appears to have moved, in a very real way, to Congress. A few key reforms are being proposed in a draft bill which has been issued for discussion (pdf). It includes:

• the introduction of a first (inventor) to file system;
• potential limits on the availability of injunctions;
• post-grant review (ie opposition) procedures

And a whole bunch of other things. Now, a bunch of Centrist Democrats have apparently voiced their support for reform efforts, in a letter (pdf) that you can find on the Promote the Progress Blog. According to Matt,

'While the letter indicates that the NDC supports efforts to advance legislation that will improve patent quality and provide common sense litigation reform, the focus is clearly on litigation. For example, the letter lists four specific reforms that the NDC urges Representatives Smith and Berman to include in their legislation. Three of the four reforms are litigation-oriented (injunctive relief, treble damages, and apportionment of damages). The fourth is related to patent quality (third party submission of art).'

If the various reforms being proposed were introduced, we would see a system that, frankly, looked a lot more like the Australian system.

 
This is a wonderful phrase from Patry on the Patry Copyright Blog.

Describing the Visual Artists' Rights Act (VARA) the only thing in the US Copyright Act that looks even vaguely like moral rights, William Patry:

'VARA is the Mini-Me of moral rights laws.'

he he.

 
Updated comments on creative commons, fair use, fair dealing.

After receiving a few very justified comments on my stream of consciousness post on creative commons, fair use, and fair dealing, I've updated the post below with some lengthy clarifications. Thanks to the colleague who pointed out the faults with, and elisions in, the original post!

 
Open source forum on anti-circumvention laws

Linux Australia is running another open source forum in Sydney on anti-circumvention laws, at Baker & McKenzie. Speakers include the inimitable Rusty Russell, Derek Neve (Baker & McK), Brendan Scott, and Caroline Morgan from CAL.

RSVPs to Pia at linux australia.

 
Swiftel case transferred last Friday?

Last March I blogged (briefly) about the Swiftel case - a case in which the Music Industry are suing ISP Swiftel for copyright infringement, with a claim, according to media reports, that that the company hosted BitTorrent technology which it claims infringes on copyright laws'.

The case is based on a Music Industry Piracy Investigations (MIPI) Investigation, which started in December 2004 focusing on two Internet Web servers known as the Torrent Web pages and a Web site known as Archie's Hub. The case has so far included a 'raid' of the ISP's premises, allowed by an Anton Piller order. (ie civil search warrant).

Anyway, the reason I blogged the case last March was because the Magistrate with carriage of the case had refused to transfer the case from the Federal Magistrates' Court to the Federal Court of Australia - this despite the striking fact that the case raises directly the changes to copyright law made as a result of the Free Trade Agreement with the US.

Now, it seems that last Friday, 20 May, the case was transferred to the Federal Court. The order can be found by searching the Federal Court's online database, eCourt (the file number is SYG596/2005). Won't those Federal Court judges be pleased that this interesting copyright case has made it's way to the 'right court'...

 
A quick lesson (to me) in copyright, fair use, fair dealing, and Creative Commons

[update: I've copped some criticism in email on this post - fair enough, I hadn't thought through everything I wrote here - this is what happens when you blog and blog quickly. I've added some clarifications at the bottom]

I had an interesting experience on the weekend. I was up in Brisbane, visiting a very good friend and celebrating her birthday. On Saturday morning, I had an extended discussion with her mother about blogging (while my friend rolled her eyes and went off to hang up the washing, complaining that she had 'bloggers in her living room and pest spray wouldn't work...').

My friend's mother has a little blog. It's a tool she uses to teach her English as a Second Language students, and get them writing in a way that all the students see each other's writing (on the benefits of this, by the way, see Ed Felten's comments today on blogging in the classroom).

My friend's mother had a student who had attended Art Express, an annual exhibition of excellent high school student artworks. She wanted to talk about the exhibition and the photos. She had used a picture from the online site of the exhibition. She had a thumbnail picture, which if you clicked on it, enlarged to the full picture. She wanted to link to the original art gallery site, but she couldn't - it was no longer there. My friend's mother asked me if this was legal - to use a picture that way. She said it had been bothering her.

This became a long conversation. We talked about fair dealing in Australian law, and how use of pictures for criticism and review was ok, but the boundaries of that weren't clear. We talked about fair use, and whether that would be broader, and allow what she was doing. We talked about educational statutory licenses, which wouldn't apply here. We talked about the ethics of doing this, and how, ethically, it might be better to just ask. We talked about how since the technology allowed people to simply copy photos with a right click of the button, that seemed an ok thing to do - at least in this small scale, educational way.

Two things struck me during that conversation.

One was that this looked pretty clearly like criticism/review, and hence not copyright infringement under section 41 of the Copyright Act. But that I couldn't be confident in saying so because of the way it is interpreted by the courts, and the sometimes narrow view taken. I thought it would 99.9% be ok, but I couldn't just say yes. I thought if we had fair use, how I would just be able to say yes, because it so clearly is non-commercial/educational, and would have no conceivable effect on any market.

This doesn't mean I want fair use, necessarily. It could just mean we should have a broader fair dealing defence. But it's a sad indictment on the current defences that I can't be confident, even in this self evidently harmless situation. All I could say with absolute confidence was that the likelihood of her being sued was next to zero. But for someone who likes to 'do the right thing', that's not necessarily satisfying. She wasn't satisfied. She wanted to do the right thing.

The second thing that struck me was how easily I could explain the concept of creative commons. How I could explain that if she or her students wanted to use photos of things for a non-commercial purpose, she could go to the Yahoo Creative Commons search engine and plug in what she was looking for and find the kind of picture she wanted. And do that with absolute confidence that she wasn't infringing on anyone's rights.

I was struck with just how 'common sense' creative commons was for her situation, and how easy it was to explain to her. A non-lawyer and not a very confident blogger, who is, as they might say, old enough to be my mother. And how self-evident it seemed to her (and my friend, who had by this stage given up trying to spray away the bloggers with Mortein and joined in the conversation about copyright justice). How sensible. How just.

Updated comments

I got an email from a colleague criticising some of the thoughts I put in this post. So a bit of clarification is in order.

First, she pointed out that I was conflating two things: the current review, which is about what you don't need permission for. And Creative Commons, which is about licensing - and affirmatively giving permissions for uses of works.

This is a fair criticism. I should have been clearer that these things are totally distinct. I agree with my colleague that Creative Commons licensing has little to do with the current review, because it is about choices that individuals want to make about their own works and what they allow others to do with them. In fact, I'm pretty sure I've said as much in a public forum, when I spoke at last year's UNSW conference.

Copyright exceptions provide for scope for everyone to do certain things (criticism/review, news reporting, perhaps more) with any copyright work. Creative Commons licensing is just a distraction from that more important issue. And Creative Commons can not provide an answer, particularly with large numbers of people apparently choosing 'Share Alike' terms - a horribly constricting requirement to impose on others in the non-software field.

I suppose I had the issues distinct in my mind. It seemed to me that for my friend's mother, if she wanted to find pictures to put on her website, she could use the creative commons searches to find readily available pictures.

A second comment she made was 'of course this is fair dealing - on what grounds would it not be? And what would be the damage anyway? Who cares? What is the social or economic problem of the use?

Well, whether it is fair dealing all depends, doesn't it? Obviously the use causes no social or economic harm. Obviously it should be allowed by the law. But it's only allowed if you can say there is news reporting or if there is 'criticism or review'. Now, probably if it came down to it a court would say that a harmless non-commercial website with 20 visitors max that has a post that goes something like 'I went to this exhibition and it was really cool and here are some of the pictures' is sufficient for criticism/review. Hopefully. But the point is, it's kind of weird, in many respects, that I even have to tell her to THINK along those lines if she wants strictly to comply with the law.

And as for the "Who Cares" - well, again, obviously no one is going to get sued over this stuff. Obviously. But then obviously too no one is going to get sued for putting their legitimately purchased non-copy-protected CDs on to their iPod, and no one is sued for taping a program to watch later. The point is that there's all sorts of uses that aren't really allowed by the law that people do all the time, and they're growing. And if the current review is worth something, it might be worth thinking about putting in some flexibility or broadening the fair dealing defences so we can be that bit more confident.

Finally, she pointed out that no one needs 100% certainty.

True. Absolutely. And searching always for certainty just makes the law more and more complicated, and lord knows we don't need any more of that. Agreed. I do need to remember that perfection is not a characteristic to be sought in the law, let alone the copyright law. But I would still not mind seeing if there is some way we could find to free up the fair dealing defences just enough so I don't have to tell people who desperately want to comply with the law, to think about whether they are passing judgment when they copy a whole piece like an artwork into their blog. That would be nice. That's all.

 
comments have disappeared

and I have no idea how to fix it. sorry! Feel free to email me any comments, k dot weatherall at unimelb dot edu dot au. I'll incorporate them in posts.

 
Patry on Grokster

William Patry gives his views in a thoughtful post on Grokster and the appropriate law on secondary liability for copyright infringement, for providers of P2P software.

 
Oh, and another thing from Lessig - levies, collecting societies, and more

This post from Lessig is also worth a bit of a read - it talks about 'Lessig talks to the Collecting Societies' - and the failure of the different ideas to meet or really communicate. The post is kind of useful in emphasising the need for a mix of statutory licenses (levies), full rights, and free exceptions - something relevant to Australia's current review of fair dealing.

One quote - actually in a comment, not in Lessig's post, which I found striking:

'The EU wants to move away from levies, BTW. As you point out, levies are not about permission, they are about lack of permission. Since there are now technical possibilities to restrict copying and other uses (DRM), the need for levy collection societies is rapidly decreasing. What you have witnessed are the last spasms of a dying breed.'

Not sure our collecting societies here in Oz would agree. Nor should they (actually, of course, CAL, it seems, is responding by changing its tune - and thinking of ways to get in to the permission culture, not just the statutory license culture, if Michael Fraser's presentation at least year's 'Unlocking IP' conference at UNSW is anything to go by).

 
Lessig responds

Lessig responds to the critics of his presentation style, and his presentations, in this lengthy post on his blog. I commented on Lessig's talk after attending his Melbourne lecture - and then later responded to some of the comments my post had generated. Lessig's response to some of the criticisms really just highlights the points I made in my criticism. In that comment, I emphasised the importance of the role Lessig has played - a different role from the average academic, and very different from anything I can ever imagine myself doing.

Lessig is open to the criticism, and takes it seriously, which is pretty impressive in itself. And his public self flagellation for what he perceives that he 'could have done better' (see his comments on his Eldred challenge, in Chapter 13/14 of Free Culture, which can be downloaded here) as well as this post on his presentation style) is a reminder to anyone that achievement and impact comes at a very dear price.

Little self-flagellation is necessary. I think that every time I've seen criticism of any aspect of Lessig's talk, it's usually come with some acknowledgement of all its strengths and the importance of the role he has played. And for more on this balance - on the role of Lessig, and the strengths and weaknesses of his approach, I refer you again to Larry Solum's review of Free Culture.

 
Copyright Law Review Committee officially 'defunctio'?

UPDATE: I'm told that the proper latin is 'functus officio' - which I'm told means 'out of office, no longer having a function to perform'. Ah, well - it's many years since I studied latin...

Apparently, the Attorney-General has stated that the Copyright Law Review Committee, or CLRC, having issued its report on Crown Copyright, is now 'defunctio officionis'. That is, the CLRC won't be receiving more references.

Wow.

Well, I guess that to some extent, if this is true, it merely confirms something that has been coming for some time. The mere fact that the CLRC were given a reference on Crown Copyright at a time when so much else was happening in copyright-world was always an indicator that they were either on the way out, or inconvenient for the moment. But the confirmation is, nevertheless, somewhat striking.

And a little disturbing. Does it indicate that the Attorney-General no longer considers it necessary to have independent experts make assessments of the proper scope of the law? Why? Because the Attorney-General's Department knows better? Expert as many of them are, surely it can't be the case that having leading experts donate their time to write reports on important questions in copyright law is worthwhile?

Apparently a reason given was 'budgetry'. Indeed, it must be expensive to have all those experts donate time.

I find this very disturbing as an idea. While I may not think that constant reviews are necessary, to make the independent body defunct at the very time when so much is going on in copyright land is, I think, pretty short-sighted.

 
Directors' Copyright

In the US, directors are not generally copyright owners in their films, owing to the 'works made for hire' doctrine. 'Works made for hire' are owned by the 'hirer'; 'works made for hire' includes 'a work specially ordered or commissioned for use ... as a part of a motion picture or other audiovisual work'

In the EU, the principal director of a film or audiovisual work is recognised as an author of the work and accord him or her the associated intellectual property rights, in line with the 1992 Directive on the Rental and Lending Right and Certain Related Rights (although countries can make other parties co-authors). As a result of various directives, directors have certain 'unwaivable' rights (generally to remuneration).

The US and EU disagreements over ownership and assignment of ownership have so far prevented the conclusion of a WIPO Treaty on Audio-Visual Performances.

In Australia, directors have moral rights, and the Senate Standing Committee on Legal and Constitutional Affairs is looking at the bill introduced which would make directors owners - so that they can get a (contractually waivable) right to remuneration from retransmission of their works.

Now in Israel, a court has just recognised that directors are 'authors' of their cinematographic works.

Is everyone clear?

 
Next post in the 'copyright exceptions' series: links to existing government and other law reform reports relevant to the review

I've been creating a series of posts on copyright exceptions (see the side bar for more links). Today's instalments is a set of links to government reports, or law reform reports, that are relevant to copyright exceptions. There are just so many with relevant recommendations, it's quite remarkable:

• The Copyright Law Review Committee Report on the Simplification of the Copyright Act (1998) recommending the creation of an open-ended US-style 'fair use' exception (consolidation of the existing fair dealing exceptions). While published in 1998, it is still under review by the Australian government;
• The Digital Agenda Review (2004) (pdf): This report has a series of recommendations on the library, archive and educationaly copying provisions. It is still under review by the Australian Government;
• The Intellectual Property and Competition Review Committee Report (2000): recommends, in essence, ongoing monitoring of fair dealing issues;
• The ALRC Report on Gene Patenting (2004): recommended that the Commonwealth should amend the Copyright Act 1968 (Cth) (Copyright Act) to provide that research with a commercial purpose or objective is ‘research’ in the context of fair dealing for the purpose of research or study. It also recommended that in relation to databases protected by copyright, the operation of the provisions relating to fair dealing for the purpose of research or study cannot be excluded or modified by contract;
• The CLRC report on Copyright and Contract (2002): recommending that provisions be inserted such that contractual provisions that seek to make ineffective certain defences to copyright infringement (like fair dealing) be made ineffective/invalid/void. This report is still under review by the Australian government.
• Final Report of the Joint Standing Committee on Treaties (2004): made three relevant recommendations: (1) that the Government enshrine in copyright legislation the rights of universities, libraries, educational and research institutions to readily and cost effectively access material for academic and related purposes (arguably based on a misunderstanding of the current position in Australian law) (2) that the changes being made in respect of the Copyright Act 1968 replace the Australian doctrine of fair dealing for a doctrine that resembles the United States’ open-ended defence of fair-use, to counter the effects of the extension of copyright protection and to correct the legal anomaly of time shifting and space shifting that is currently absent; (3) that the Attorney General’s Department and the Department of Communications, Information Technology and the Arts ensure that exceptions will be available to provide for the legitimate use and application of all legally purchased or acquired audio, video and software items on components, equipment and hardware, regardless of the place of acquisition;
• Final Report of the Senate Select Committee on the Free Trade Agreement between Australia and the United States of America: the Liberal Senators adopted the JSCOT recommendations. The Labour Senators recommended (1) that the Commonwealth Government enshrine in the Copyright Act 1968 the rights of universities, libraries, educational and research institutions to readily and cost effectively access material for academic, research and related purposes. Labor Senators further recommend that the issue of such use of copyright material should be referred to the Senate Select Committee on Intellectual Property to investigate whether universities, libraries, educational and research institutions should be exempt from paying royalties after 50 years; (2) that the (newly to be created) Senate Select Committee on Intellectual Property investigate options for possible amendments to the Copyright Act 1968 to expand the fair dealing exceptions to more closely reflect the 'fair use' doctrine that exists in the United States and to address the anomalies of 'time shifting' and 'space shifting' in Australia, and (3) that the Senate Select Committee on Intellectual Property should investigate the possibility of establishing in Australia a similar regime to that set out in the Public Domain Enhancement Bill 2004 (US), with a view to addressing some of the impacts of the extension of the term of copyright, in particular the problems relating to 'orphaned' works.

 
I just re-read the opinion piece by Malik from yesterday's Age...

...and it strikes me as a little strange, to be honest.

Does anyone else think it is a bit strange that Malik should be suggesting, in effect, that we pay a levy for potentially less user rights than they have in the US for free? What Malik appears to be suggesting is that we pay a levy - not just on CD-Rs, or other media, but even on hardware (like computers? like iPods?) - and have the 'right to back up'. In the US, media shifting (not just 'backing up') (transfer to a iPod, for example), is FREE - so the RIAA itself acknowledges.

And Malik says nothing about the other kinds of things that adopting a fair use system might enable - like parody, or transformative use of existing copyright works.

Now, inevitably in an op-ed, complex ideas get simplified. But I'm not sure I like the simplified system that Malik refers to at all.

 
Call for review of the 'obviousness' (inventive step) standard in the US

Via Lawrence Lessig - conservative think tank, the Progress and Freedom Foundation, has called for a review of the Federal Circuit's obviousness standard, saying it is letting too many bad patents through. 2 Senior Fellows of the Foundation filed an amicus brief (pdf) in the case of KSR v Teleflex. According to a press release, the case is about:

'a patent held by the respondent that claims "invention" of the combination of two pre-existing designs -- an automobile adjustable accelerator pedal and an electronic throttle control. A district court ruled against the patent, finding that anyone with an undergraduate degree or modest industry experience "would have found it obvious" to connect the two devices. A Federal Circuit Court of Appeals panel vacated that judgment because the petitioners hadn't found objective evidence that anyone suggested the combination before the respondents filed their patent.'

According to the PFF fellows,

'PFF, precisely because of its fierce insistence on the importance of intellectual property rights and markets to the world economy, is concerned that the patent system not overreach by trying to protect too much," DeLong and Singleton say. "Extensions of the system to cover creations that are not true advances cause misallocation of resources and provide ammunition to those whose goal it is to undermine the basic idea of patents....
...The Federal Circuit's test says, in essence, that all doubtful cases, all cases in the gray area, will be decided in favor of patentability. It has decided to run zero risk of rejecting a meritorious claim even at the cost of accepting numerous non-meritorious claims...This is not sensible doctrine. Nor is it in accord with the statutory language or the precedents of this Court'

24 Law Professors also filed an amicus in the case (pdf). The case has not yet been granted certiorari by the Supreme Court.

 
Senate Standing Committee on Legal and Constitutional Affairs Inquiry into the Directors' Copyright Bill

Last week, the the Senate referred the Copyright Amendment (Film Directors' Rights) Bill 2005 to the Senate Legal and Constitutional Legislation Committee for inquiry and report by 9 August 2005.

Submissions are due by 3 June 2005.

The notice of inquiry is here.
The bill and information about the bill can be obtained here.

If anyone knows why this matter has been referred to the Senate Committee, and in such a general rush, I'd love to know!

UPDATE: further to this last comment, rumour has it that the Screen Directors' Association is unhappy with the Bill. I can neither confirm nor deny that: I can't speak for the Association.

 
Correction

Please note the correction below to this post on EULAs and contract generally.

 
Today's op-ed on fair use by Alex Malik...

...is available here on The Age website. I don't agree with everything Alex says (I don't agree, for example, that 'very little' has changed since 1992), but it's good to see this debate reaching the mainstream media.

 
Links to other peoples' thoughts on copyright exceptions.

So, I've already put up various thoughts of my own on copyright exceptions. My fair use/fair dealing posts are linked from the sidebar, and the main posts so far are these:

• Initial Comments on the Issues Paper (May 6)
• Compendium of past posts in the last 12 months (May 6)
• Thoughts on making submissions (May 13)

But of course, mine is not the only opinion (!!). So, as a general resource, here are some other views on some of the issues raised in the Issues Paper:

General comments on the idea of an open-ended fair use exception in Australian law

• Australian Copyright Council response to the CLRC recommendation of a fair use exception for Australia (opposing the idea because it would create more uncertainty and ''result in a vast expansion of the exceptions to copyright owners’ rights' (note that this response is dated in 1999, although the indications from the submissions on the FTA indicate the broad position has not changed)
• Australian Digital Alliance and Australian Libraries Copyright Committee position (in favour of a fair use exception).
• Slashdot discussion on 'what exceptions Australia should have' (Tuesday, May 10). What is interesting about this discussion (particularly if you scroll down a bit) is the focus on copyright term and the problem of 'abandonware' - computer software which is no longer being sold or supported by its copyright holder.
• Electronic Frontiers Australia position on fair use (in favour)
• Copyright Agency Limited position on fair use (opposed, because it would 'disadvantage both users and copyright owners' - 'Under a fair use regime users face uncertainty in being able to determine what is a permitted use of copyright material. There would also be the need for many years, if not decades, of litigation to clarify the application of fair use in Australia')

Comments and positions on the issue of private copying (in no particular order)

• Australian Copyright Council Supplementary Submission to the Senate Select Committee on the AUSFTA (July 2004) (pdf) - calling for a review of the private copying issue, and noting that the 'issue is very complex and affects a wide range of interests'
• Submission of Screenrights to the Senate Select Committee on the AUSFTA (pdf) - setting out a history of the private copying issue, and annexing a past (2002) proposal for a levy scheme on digital media to compensate copyright owners for private copying
• Phil Tripp on private copying and a proposal for a private copy levy system (June 2004): Two articles in Themusic.com.au: 15 June 2004 and 29 June 2004.
• Australian Record Industry Association position paper on a private copying levy (describing a levy as a'flawed, cumbersome and very unsatisfactory "solution" which, in all likelihood, could exacerbate the very problem that it is seeking to address').
• Electronic Frontiers Australia position on fair use (in favour)
• Australian Consumers Association position on fair use (in favour)

Obviously, I'm happy to put up more links if anyone is aware of any other places where a 'position' has been taken on the issues raised in the Review. Just email them to me at the University of Melbourne.

 
Auteur theory

Just a quick link to a couple of posts on 'auteur theory' from bloggers in the cinema/digital cinema area (for once, Kim links to blogs that are not blawgs!):

• Digital Poetics on all those extra features on DVDs, and how they fit as creative works;
• Stu Willis on the role of the director, and, more relevantly, on the role of the producer as creative artist.

Sometimes it does us good to get out and explore beyond the usual round of blogs...

 
The next open source forum in Sydney

looks like being on anti-circumvention law, on 2 June. Info here, no doubt with more to come.

 
via IPWar's: ACIP recommendation of introducing protection in the trade marks act for 'national icons' rejected

Good news indeed: ACIP's idea (pdf report) of introducing a 'non-exclusive' trade mark (whatever that is) to protect 'national icons' (whatever they are) has been rejected (pdf) (phew) by the government. It's a fairly resounding blasting of the ACIP idea, by the way: the ACIP recommendations, according to the government:

• inconsistent with current law;
• would have the potential to cause considerable confusion for consumers, and could result in the removal of some consumer protection;
• could not operate effectively in practice
• would introduce complexity, and considerable administration costs.

OK, so it doesn't pass the laugh test in terms of the current law, would be complex, and confusing to consumers. It seems it was a highly unfortunate recommendation, really.

I'm quite relieved to see the government shying away from introducing legislative complexity.

 
Multimedia

This Australian development by Australian game development company Tantalus looks like a clever cross-over from video game to film - the opposite of the usual progress we see!

 
(via Ernie Miller): Private Copying and DRM and the French Decision

A few weeks ago the blogs were a-gog with news that a French Court of Appeals had held that DRM on DVDs was illegal insofar as it interfered with the right of French citizens to make private copies. Constitutional Code was one of the blogs that mentioned the issue. Patently-O summarises the case thus:

'Mr. P purchased a DVD of “Mulholland Drive” wanted to play it at his mother’s house. Unfortunately, his mother only owned a VHS player. Because of anti-piracy software on the DVD, Mr. P was unable to transfer the video to the VHS format. He brought his case to the French consumer union (UFC) who then brought suit against Universal Pictures and Studio Canal. UFC’s complaint relied upon the French Intellectual Property Code that guarantees the rights of consumers “to make a private copy” (Article L.122–5) and obligates vendors to inform consumers of essential characteristics of goods (Article L.111–1).
The Appellate Court agreed that Mr. P’s rights had been violated, finding that the anti-privacy locking mechanism was a breach of the exception for private copy and that Universal had failed to provide sufficient information about the mechanism, which is an essential characteristic of the product.'

Now, Ernie Miller reports that Patently-O has a translation of the French decision (pdf). It has some interesting comments about personal copying, and the Berne 3 step test. But I particularly like this paragraph, which highlights the fact that the complaining consumer had paid the mark-up on the blank DVD to compensate copyright owners for private copying, and then couldn't copy:

'Whereas the damage suffered by Mr P. occurs entirely at the same time from the marked up price of the blank cassette purchased, in consequence of the amount of royalty owed for private copy, and from the loss of joy that he suffered because he was not able to process a private copy; that with allowance made for the product ingredients, the court estimates that the sum of 100 euros will exactly compensate for this.'

 
Update on my Pod-casting Post

I blogged a couple of days ago about Pod-casting and its IP implications. In particular, I noted the story in the Australian that licenses for pod-casting music are not available in Australia.

It's worth noting this news, therefore: the in the US, podcasters are able to license content through a format that limits the quality of the content they circulate.

To access the American Society of Composers, Authors and Publishers' (ASCAP) Internet License agreements, you can click here.

 
The Future of Copyright Exceptions and the AG's Discussion Paper

49 days to go before submissions are due on the Issues Paper on Copyright Exceptions. Submissions are due 1 July.

My previous posts on this are here (summary of the issues paper) and here (compendium of past posts relevant to the review).

I've been receiving a few questions from people on whether it is worth putting in individual submissions, and what submissions might be valuable; what issues are up for debate.

In response to the first question: yes it is worth making submissions. After all, what do you have to lose? What happens in the end will depend on the government's attitude - but the Issues Paper left things wide open and if there is one thing you can say for Philip Ruddock, it is that he seems genuinely interested.

Who should submit? People affected by the lack of an exception, or people affected by the form and structure of current exceptions. The more information you can give of real life problems that have affected you - because of the existence, non-existence, or structure of exceptions in the current copyright law, the better. Some examples include:

• are you affected by the complexity of having to comply with current exceptions? Does that stop you from doing things you might like otherwise to do, that have some real social value (ie, that society should encourage)? Are there old films mouldering away somewhere because you can't use the archiving provisions to preserve them?
• are there exceptions in the current Copyright Act which prevent the growth of a market opportunity that small Australian businesses could use?
• have you ever had to abandon a project or business idea because of copyright law? For example, did you ever have to abandon a digital media project or artwork because you wanted to use existing material and couldn't get the necessary permissions?
• Can you talk about real life problems with digital media/format-shifting? Are you encountering serious barriers to things you want to do?
• are there copyright materials you would really really like to use but can't because they're old and you can't find the copyright owner?

Remember, not all problems deserve a copyright exception. Think about whether there are legitimate interests on the other side too - the most convincing submissions are thoughtful ones! More tips, by the way, in this previous post.

And if anyone out there has more suggestions for people who want to make submissions, or wants some help in thinking about making submissions, please, let me know.

 
Friday morning thoughts on blogging, the future of communications and the Daily Me

In unrelated news, I attended the 2nd last Deakin Innovation Lecture at the Town Hall on Wednesday night - in theory, the session was on journalism, but as far as I could tell, it was basically about blogs. Lance Knobel and Jay Rosen talked about how blogs are changing journalism and communication, and in particular, how they are 'democratising the media'.

According to Knobel (who I thought gave a good talk), what we are seeing at the moment is the most amazing development of the hardware for communication - ie, the equipment for communication. What we don't really know yet is how it will all be used - ie we haven't yet developed the culture for use of this communication (just as a new democracy may introduce an independent judiciary and voting but if no one knows how to use them, the result may not be positive).

I guess my view on blogs would be the classic one on new technology - we overestimate its importance in the short term (as is happening now, with all the hoo-ha about blogs that has hit the big media just recently), and underestimate its importance in the long term (blogs have changed what people can do with communications, and who they can talk to globally - and that must have profound effects in the longer term).

The view expresed at the Deakin Innovation Lecture on blogs and communication, and how people will use such forms of communication was a highly positive one. The vision being promoted was a world where people developed a set of intermediaries - bloggers, basically, who help them sort through the masses of information. It was, in short, a highly empowered view of the media consumer.

The dark side of this, of course, did rate a mention - Knobel mentioned the "Daily Me" - the idea that if we all use RSS feeds and blogs and the like, then we end up talking to each other a lot. (Cass Sunstein wrote about this a few years ago, in a book called republic.com.) I can't see that happening, really. Many bloggers are the kind of people who love a good fight (sorry, love a good debate), and they link to each other and continue the debate.

For a really dark vision of the future of communications, and a thoughtful one, I suggest you go watch this short 'film' - EPIC. It's an extremely clever thought piece about the future of media, and I've been thinking about it ever since I watched it yesterday morning. How might Google and Amazon take over the world's media, even as we move to more individualised creation and consumption of media and information, and what might that mean...?

 
Friday morning thoughts on patent reform in the US

Kind of busy today. Had to write an exam and the students are starting to become more demanding as we head into the end of semester. So will just put up a few short thoughts and links.

First, Promote the Progress continues to monitor the progress of patent reform in the US. Interestingly, Matt is saying that a reform bill is likely to be introduced before the National Academies meeting on June 9. The reform bill is likely, he says, to contain a few things we are familiar to Australians, like:

• a first to file system
• post grant review - ie, a post-grant Opposition system
• elimination of the 'best mode' requirement
• a complete overhaul of the inequitable conduct ‘system’
• allowance of applications to be filed by companies
• changes to the standard for awarding willfulness – including codification of Knorr-Bremse and an explicit indication that mere knowledge of a patent is insufficient
• 18–month publication of all applications that are not-abandoned
• change to the calculus for awarding injunctive relief

Generally, this could be good news for patent owners in Australia, who will likely be dealing with a slightly more familiar system. Watch Promote the Progress for more info on this debate. Of course, there are many who would also argue that more radical reform is needed and will be avoided here.

 
My new paper on patent enforcement in Australia with Paul Jensen...

...is now available on SSRN. Click here or on the sidebar.

 
via IPWar's - EFF on Common Terms in Shrinkwrap/Clickwrap/Browsewrap Licenses

UPDATE: I've corrected this post, which used to say that the Fair Use Issues Paper did not deal with the Copyright and Contract CLRC report. I was wrong; it is mentioned and described, albeit non-commitally (noting that 'the Government is considering the CLRC's report').

Thanks Warwick Rothnie for this link: the EFF has a new paper on "EULAs" - End User License Agreements - those contracts used particularly by software companies to govern the use of software. The paper outlines common terms found in such licenses, and why they harm consumers.

Terms outlined in the paper include terms:

• that forbid public criticism of software, or the revealing of benchmark tests of the software to others;
• that allow the software company to force updates on the end user (eg, a term like 'You acknowledge and agree that in order to protect the integrity of certain third party content, Pinnacle and/or its licensors may provide for Software security related updates that will be automatically downloaded and installed on your computer. Such security related updates may impair the Software (and any other software on your computer which specifically depends on the Software) including disabling your ability to copy and/or play ‘secure' content, i.e. content protected by digital rights management';)
• that forbid reverse engineering (note - this has no effect in Australia as a result of a combination of s 47D and 47H);
• that forbid the use of others' software;
• that allow the licensor to update, change, modify etc the Agreement, and to impose new rules, even without notice;
• warranty disclaimers

It's an interesting read.

As Rothnie notes, the CLRC's Copyright and Contract Report - that recommended making some exceptions in copyright law impervious to contractual limitation, is currently mouldering in the halls of the government somewhere.

Indeed, in the current review of Copyright Exceptions, it is a notable absence from the Issues Paper (the only mention of the report I could find was an acknowledgement that the table in Attachment A is a revised version of a table from the Copyright and Contract report!). it is not clear how the government intends to deal with this issue, and whether it forms part of the Review as such.

 
Quote of the day on IP, and something to bear in mind in the current Copyright Exceptions Review

"In our field, legislation spirals upward in complexity, often to no purpose" (Paul Geller)

 
Update to my comments on the Lessig Talk in Melbourne

Hmmm, my post on Lawrence Lessig's appearance in Melbourne has generated some comment action. A couple of quick responses to my commentators.

Darren said that

'I think it was more in the nature of a call to arms rather than a battle plan. The other thing I would say that he only had a limited time to deal with the topic in the Melbourne talk, and so skipped a few things'

I entirely agree. As I noted at length in my post - this talk - and Lessig's approach more generally - has been about using rhetoric aned simple stories to get people interested, excited, and most importantly, acting. This is all the more important given Lessig's two basic prongs in action: (a) law reform (for which he holds out little hope, at least in the US) and (b) voluntary adoption of 'reasonable' rights through the Creative Commons approach. As he has said (and as I noted in my post) - this is a movement, not a reasoned, academic debate.

Darren also said that

'[Lessig's argument about 'talking about movies' and remixing is that] the problem is not copyright law, but the combination of reducing copyright law to being enforced by technology, so that if the content is carried on a digital medium, then it is restricted and unable to be remixed as a digital collage of work'

Again, I think I agree. Digital restrictions make the possibility of collage, and piecing together bits of culture in a new form much more difficult, and potentially impossible. But it is also important to remember that technology is also putting the means of creation, cheaply, in our hands. They are now advertising digital movie cameras, and indeed, some phones already enable the creation of digital clips. We have all the less need to cut and paste from others audio-visual works when we can create our own. Obviously, that is not everything (the examples Lessig used in his talk were extremely funny and REQUIRED remixing of existing material). But it is not the be all and end all. I, too, am very happy to debate this more.

ACS said:

I congratulate the writer of this blog for putting something up that points out the nature of Lessig's arguments.
Although Lessig is a legal professor his works are often more politically biased that based in law.

My response is that I think this is a little unfair. I think Lessig uses much rhetoric, and simple stories, to illustrate one side of a debate. Lessig's arguments are undoubtedly sometimes oversimplified - particularly in a talk - but on the other hand, aren't we often at risk of forgetting that copyright now affects all sorts of people - including people who haven't had to undergo the trial by fire of trying to understand our Copyright Act? Lessig is, I think, considerably less 'politically biased' than many in this debate.

ACS also said:

'Take his argument for peer to peer software that by putting a song on peer to peer there is an increased stimulus for consumers to buy the product - he uses the the band Wilco as an example. The problem is that despite improving the demand for works it doesnt properly address the failure of p2p to recognise the rights of authors under Copyright. Rather it says if a good thing may happen we should not worry if the law is being broken.'

I must defend Lessig here: Lessig is at pains, particularly in his recent writing and his talk in Melbourne, to point out that he thinks we need to be much stronger in condemning piracy. In fact, on Sunday it was only Joichi Ito who made the 'file sharing doesn't damage sales' argument.

ACS also argued that:

'Academic expression without practical grounding should not be used to influence a generation of lawyers into believing that freedom with respect to copyright is the same as freedom of speech.

I think this is a very overstated fear. I have been teaching intellectual property and Internet-related law for 4 years now. I have had many students, and many classes. They are skeptical of arguments at both ends of the extreme. They are not out there thinking file sharing is free speech - in fact, they have consistently impressed me with their ability to see the real issues, and their consciousness of a need for all interests - the creative and the commercial - to be respected.

And finally, Robert Merkel noted that:

'Politics is a dirty business, requiring complex issues to be simplified - for experts in the field, oversimplified - for people to grasp the essential points. Lessig arguably overstretches an analogy, and didn't raise an infinite number of other compelling arguments against the current copyright regime - for instance about how copyright has a particularly Western, early 20th-century model of how creative works come into being. I'm prepared to cut him a little slack.'

As I noted, I think there are things that Lessig does that are valuable. The Creative Commons scheme is one. And we need a full range of views and stories to have this debate. May the debate continue!

 
The Biz on Pod-casting.

UPDATE: there are reports that Hilary Rosen post was a hoax. he he. (see also the comments in the Copyfight post). I don't know the truth here.

I get asked about this a lot - are there legal (copyright, IP) barriers to pod-casting?

Well, in a word, yes - if you want to include other peoples' copyright material, you really need their permission to include it in a podcast. Or, you need to find stuff that is distributed freely, or that is distributed under an appropriate Creative Commons license.

At the moment, the music publishers will not give you a license, unless perhaps you are using DRM. But DRM itself can be an issue, right? Because as I understand it, the dominant provider of digital music players on which podcasts would be used would be iPods, right? And iPods don't support DRM other than Apple's own iTunes DRM... So, you will seek in vain a license from AMCOS/APRA.

The story has made the Australian's IT section today, here.

We can certainly understand the problems that arise here: having long battled with digital music providers over the pre-conditions for licensing music downloads (and taken quite a long time about it), it would be a bit much to expect quick movement on podcasting. On the other hand - these are not new issues any more. And there is - and has long been - a real need for legal alternatives.

Those pesky iPods. Haven't they just caused all sorts of problems? First pod-casting, then fair use and establishment of a review on copyright exceptions that includes issues of personal copying. Really, Apple should be sued for inducing infringement of copyright on a massive scale, right? (for more on the Australian legal position in relation to iPods, see my posts on personal copying - links here).

Oh, and in other comments around today on iPods and their legal implications, you might want to check out Hilary Rosen's complaints about the iPod. Hilary Rosen was once the head of the RIAA - the big lobbyists, along with the MPAA, for DRM and the DMCA, the law which backs up DRM. Now, in a post to the Huffington Post, she complains of some of the effects of digital rights management - the fact that Apple uses its own, proprietary DRM. For a critique back, see Ernie Miller on Copyfight.

 
Lawrence Lessig and the Art of Copyright Rhetoric

[update: another (student) perspective on the Lessig talk in Melbourne here]

Yesterday, I saw Lawrence Lessig speak on the Creative Commons, one of the Deakin Innovation Lectures at the Melbourne Town Hall.

It was quite an experience.

Lessig has been called a kind of 'rockstar' academic, and that is what I saw yesterday. It was a performance; complete with powerpoint slides that operated like the multimedia displays you see at rock concerts, or the images of a slick marketing campaign: a show in themselves; not listing main points, or illustrating points with quotes, but highlighting words, the message to be imprinted and taken away: remix, free, analogue, digital. The slides operated at several levels: marketing level, geek level (particularly in the use of html tags), colour, light and sound.

This was not an academic presentation. It was not a Professor's lecture. It was rhetoric; it sought to persuade, to involve, to convince. Creative Commons, as he said in his blog the other day, aims to be a movement:

'Creative Commons, as you've reminded us, is a movement. Its aim is to get creators to take responsibility for the environment (as our founder Jamie Boyle puts it) of creativity that we live in. It gives artists and authors free tools with which to mark their creativity with the freedoms they intend their creativity to carry. These tools help creators say something. With them, creators stand in the space between the extremes of “All Rights Reserved” and “No Rights Respected,” and they say, this space is right.'

So when Lessig speaks, particularly to a generalist audience, his aim is to persuade, to convince, to excite. He is taking copyright law debates out of the arcane; out of the halls of law academe and into the mainstream. In his book Free Culture he said:

My method is not the usual method of an academic. I don't want to plunge you into a complex argument, buttressed with references to obscure French theorists - however natural that is for the weird sort we academics have become. Instead I begin in each part with a collection of stories that set a context within which these apparently simple ideas can be more fully understood. (p13)

This has been Lessig's method for some time now: starting with Code, which also used stories and simplified academic ideas, progressing through the Future of Ideas and coming to some kind of culmination in Free Culture, and in the Creative Commons Movement.

Watching this show, feeling the rhetorical power and the power of simple stories, simple messages, I very much enjoyed the presentation. But I was also reminded of the views of another Larry, Larry Solum, who recently wrote a review of Free Culture. I found myself drawing many of the same conclusions as Solum. As Solum put it:

'Free Culture wants to win hearts and minds for a great cause - a radical paradigm shift from corporate culture to free culture, from selling to sharing, and from intellectual property to intellectual commons.

As Solum points out, Lessig is a 'norm entrepreneur' - an individual or entity that seeks to promote or change a norm (norm being a kind of rule of behaviour). In other words, Lessig doesn't want to talk about the way things are - he wants to change them. And so he speaks the rhetoric, and he also walks the walk - he set up Creative Commons as a movement; a practical way to put into effect his ideas of shared creativity. Free Culture is available under a Creative Commons license - you can download the book for free. He is seeking to update his earlier book, Code, through a collaborative wiki.

There is so much to admire in this. There is clearly a very important role for people like Lessig, putting into action some of his ideas, communicating those ideas at a simple level, making them accessible to all kinds of different people, who are now affected by this traditionally arcane issue of copyright.

And yet still, for me, the presentation was, at times, frustrating. Again, as Solum puts it,

Rhetoric and not rigorous argument is the currency of the norm entrepreneur. And quite naturally, academic readers will get a bit antsy about the looseness of Lessig's arguments and the imprecision of his language.'

OK, so I put my hand up. Yes, antsy. I walked out of the presentation feeling like some of the arguments were just unsatisfying. The idea that 'whining about Michael Moore's movie to friends' was a form of 'remixing' - and the kind of thing that copyright law tries to prevent - is just unsatisfying. It's fundamentally different from 'remixing' in the form of taking existing works of culture and making something new with them (say, in the Jib Jab style). The idea that we can't teach our kids to 'write' because of copyright law is less and less satisfying as technology puts the ability to create even digital movies into peoples' hands.

I get it. I get the power and the need to communicate these ideas in a simple, powerful way. In many respects, I really admire Lessig and what he does. But yes. Antsy. Mixed feelings at times, particularly after seeing him speak. And the last word to Solum, whom I find myself parroting a bit here.

Free Culture largely accomplishes the task that it set for itself, but that is not the end of the story. There is a distinction between effective rhetoric and responsible rhetoric. One can persuade with good arguments and with bad arguments. Does Free Culture achieve its rhetorical effects using stories and arguments that illuminate the future of copyright? Or did Lessig go over the top and take the cheap shots. As much as I admire Lessig and his book, the answer to these questions must be, 'A little bit of both'."

 
The Fair Use Issues Paper - some initial thoughts

As we all know by now, the Issues Paper has been released by the Attorney-General's Department. The paper is here, and the press release is here.

I've now had a bit of a chance to have a look, and here are some first thoughts.

First, the government is not just asking the ‘small questions’. The first thing that strikes you about this Issues Paper is that they are really not shying away from being told any grievances you have about copyright exceptions as they currently exist in Australian law. Unlike some other recent inquiries on copyright (cough cough Digital Agenda Review cough cough), this is not an Issues Paper that has confined ‘terms of reference’.

The government is seeking views on:

1. the operation of the current copyright exceptions – particularly the fair dealing exceptions – in providing a balance between the interests of copyright owners and copyright users. So - how adequate are they? Are there things that should be excepted but aren't? Are there things which should not be free, but which are? Do you have a grievance about The Panel case and its interpretation of fair dealing?
2. whether the Copyright Act should be amended to consolidate the fair dealing exceptions on the model recommended by the CLRC back in 1998. That model basically involved consolidating the existing fair dealing defences into one open-ended model that specifically refers to the current exclusive set of purposes - such as research or study, criticism or review, reporting news and professional advice - but is not confined to those purposes;
3. whether Australia should introduce an exception that resembles the open-ended fair use exception in United States copyright law;
4. whether Australia should introduce a specific exception for time-shifting television and radio broadcasts. That is, taping things to watch or listen to later (ah, Senator Cook will be pleased at the idea that he might stop being a copyright infringer);
5. whether Australia should introduce a specific exception for format-shifting (eg, copying music from your CD collection onto your iPod), and if so, for what materials and under what conditions;
6. whether Australia should introduce a specific exception for making back-up copies of copyright material other than computer programs? eg, can you make a back-up copy of your childrens’ DVDs so you don’t have to buy multiple copies because of sticky hands?
7. Whether Australia should introduce a statutory license for private copying – ie, whether we should introduce some kind of levy scheme which would add to the cost of devices and the like, in order to compensate copyright owners for private copying. Some time ago, Screenrights proposed a model for this, which can be accessed here as a big pdf
8. Whether any other specific exceptions or statutory licenses should be introduced (one example that springs to mind is the orphan works issue);
9. other options for implementing reform, and the costs and benefits of those options;
10. ‘any other matters arising out of this Issues Paper’

Get that last one - any other matters!!! That means you can raise things you think they've missed.

You know what is really weird though? There is nothing there about the issue of anti-circumvention law. What is more, the question of how fair use/fair dealing interact with technological protection measures is raised by the Issues Paper - there is a whole section (paras 10.2 - 10.9). All the Issues Paper says is that:

'The Government has until 31 December 2006 to implement these obligations and will be conducting a review regarding exceptions that should be permitted, and which are consistent with the AUSFTA obligations. That review will provide an opportunity for further public consultation on this issue'

What is not clear from that statement is whether they want to hear anything now. It SEEMS to suggest they don't. But it's not entirely clear.

This will be a developing discussion. But it does seem to me that the Issues Paper leaves things very wide open. When people say 'go forth and submitify' - they really mean it. If you have a gripe in this space, now is the time to raise it. Particularly if you can back it up with proof.

A couple of points about submissions:

• examples; real life problems are always best – it is always most useful if real life problems (not speculative problems) can be identified. If you know anyone who has suffered real harm from the absence of a sufficient exception, then let them know about the review. Similarly, if you know someone who has suffered because some exception is too broad, tell them too!
• Anyone proposing an exception must really try to address, or find someone who can address, the issue of compatibility with the Berne 3 Step test. AGs have put this upfront in their Issues Paper. I think they are saying that effective submissions require information on this point (or, that they will need some submissions on this point before they move on anything) when the Issue Paper says 'Proposals for new exceptions, or changes to new exceptions, in the Copyright Act must be consistent with the above three-step test'.
• One key issue the AGs are grappling with is the possible relationship between a fair use exception and existing exceptions in the Act. Should fair use be ‘added on’? Should it ‘replace’ other defences? (see para 13.6)

I’ll have further thoughts as I go along about the details of the Issues Paper. But just in case anyone is interested, and because this blog has no really good ‘index’, I’ve created an index of my posts that relate to issues that arise in the context of this review. That post is here.