When you see this film, lie back and think of the cost of copyright clearances...

I was amused to see this glowing review today of the film Tarnation. The review notes that:

'Like a horror movie about an average American family, Tarnation is Caouette's intimate and raw memoir consisting of home-movie footage he shot between the ages of 11 and 31, cut in with other pieces from his life such as photographs, answering machine messages, video diaries, television grabs and some of his favourite music. Caouette edited the film at home using Apple's iMovie software for just $US218 ($295).

Endorsed by Gus Van Sant and John Cameron Mitchell (Hedwig and the Angry Inch), who were executive producers, and picked up by a distributor, the film went on to screen to audiences around the world, including at Sundance and Cannes. It has been hailed as the tip of the iceberg for do-it-yourself filmmaking.'

Wait just one cotton-picking moment, however. The film was edited for just $295. But getting the rights cleared cost considerably more, as Jaszi's recent report on Documentary Film-making notes:

The cost of rights can dramatically inflate a budget, as budding filmmaker Jonathan Caouette vividly demonstrated with the 2004 release of his home-made movie about his dysfunctional family, Tarnation. Although the film was largely made from images of his mother and grandparents, it interwove many references to popular culture. Thus, a film that the filmmaker estimated at a cost of $218 in hard cash ended up costing $400,000, using most of the eventual budget to clear rights.

Now, the fact is that, quite arguably, copyright owners should have some rights to remuneration for some uses. Whether all this remuneration for all these uses is something I can't comment on without seeing the film.

Just bear this story in mind, as you edit away on your Apple iMovie software, dreaming of film-making fame and Cannes glamour.

 
ZDNet article is a bit simplistic. Tamberlin J is indeed a smart judge. Linking is only an infringement in context, when we can say that the person authorises infringement.

As I suspected (and noted this morning), the ZDNet article doesn't do Justice Tamberlin justice in its report of this morning. The judgment is far more subtle than the report suggested. Most importantly, it seems to me, the copyright owners have not won on all their arguments about the meaning of the provisions introduced into the Copyright Act via the Digital Agenda Act of 2000.

The copyright owners in this case were arguing that in putting hyperlinks on his own website, Cooper was himself "communicating" copyright material "to the public" (electronically transmitting to the public), and was "making copyright material available online" to the public.

Had copyright owners succeeded on these arguments, that would have been a very broad reading of the Copyright Act, with quite serious implications for the activities of people who manage websites.

In particular, Justice Tamberlin has found that Cooper's hyperlinking:

• did not communicate the works to the public. Remote sites that he linked to were 'communicating' the works to the public;
• did not 'electronically transmit' the works to the public; and
• did not 'make the works available online'.

Instead, Cooper infringed copyright by:

• making copies of sound recordings onto his hard drive; and
• authorising the infringements of people who downloaded sound recordings using his hyperlinks, and authorised the infringements done by the remote sites (presumably, the communications of the works to the downloaders).

This latter ruling has important implications, because it does mean that the owner of a website can be held to authorise infringement by their linking activity. However like all analyses of authorisation, it is highly dependent on the particular facts. I will need to read the case more closely before I can comment on the full implications of the authorisation finding. (Of course, we are also waiting on two other authorisation of copyright infringement judgments here in Australia at the moment, in the Kazaa (P2P) litigation, and the appeal from the Metro on George decision of Justice Bennett). Fun, fun, fun.

The copyright owners also lost, by the way, on an argument that Cooper had infringed by 'selling, letting for hire, or by way of trade offering, or exposing for sale, an article or exhibits an article in public by selling or exposing for sale and exhibited by way of trade the music files on his website'. According to Tamberlin J,

'Even on the most beneficial interpretation, the word "article" is not apposite to include the service or facility provided by the Cooper website. Accordingly, s 103 has no application in the present case in relation to any of the respondents'

This is a loss for the copyright owners - I'm sure they wanted the term 'article' to apply quite generally.

More commentary will come, but I have a meeting now...

 
The Cooper (Linking is copyright infringement?) Judgment is Up

Here.
I've not read it yet.

 
Huh? Linking is Infringement? Cooper found guilty of copyright infringement for linking to sound recordings (UPDATED 10:15am)

ZDNet is reporting that in a judgment handed down yesterday, Justice Tamberlin has found that both Queensland man Stephen Cooper, and that the ISP/employees of the ISP were also liable.

Notably, Cooper was not hosting infringing files - rather, he was linking to them. OK, so my reaction, too, was 'huh?' After all, we link all the time to things that might be copyright infringement. However, it is important to note that Tamberlin J is a judge whose wisdom I generally respect. I don't think he would have done this lightly. Cooper was also represented by pro bono counsel. update: I should note that Cooper's pro bono counsel was Tony Morris QC - who is not only (by repute) excellent, but also understands IT matters. Tony is currently the Commissioner for the Bundaberg Hospital Royal Commission here in Queensland (ie, the Dr Death Inquiry). Tony's arguments were summarised by ZDNet here (hat tip: David Jacobson)

It's also not clear from the story whether these were active links in the sense that clicking on them would lead to immediate download...

We will have to wait for the judgment before jumping to conclusions.

Unfortunately, the judgment is not up on AustLII yet; when it is, I'll discuss the details.

 
Software patent directive, the public domain and reforms to copyright collecting societies proposed in Europe: a couple of pointers for this morning...

I have things other than blogging to do this morning, unfortunately, so I'll just drop a line with a couple of pointers to things of interest I read this morning:

• Joi Ito, IT entrepreneur, on the software patent directive going down. Joi actually spoke in Melbourne recently at a Deakin Innovation Lecture (with Lessig; bit of a treat!). This post on software patents is interesting because it does examine the 'software patents encourage innovation' issue, from a entrepreneur's perspective - and puts some numbers around the costs of getting patent protection, as compared to the funding usually raised by a start-up. There's also some intelligent commentary. Worth a read.
• The Independent reports that the classical music labels are complaining about the BBC's initiative of allowing free downloads of Beethoven's Symphonies. As the Independent reports,

'This week the BBC will announce there have been more than a million downloads of the symphonies during the month-long scheme. But the initiative has infuriated the bosses of leading classical record companies who argue the offer undermines the value of music and that any further offers would be unfair competition'

This story beggars belief. First - as Lessig pithily comments - 'is the public domain illegal?' Second, how can it be a bad thing that people want to have a taste of Beethoven? Isn't this likely to grow the market for classical music?

• There's a lot of talk in Europe at the moment about potential reforms to music licensing and the collecting societies. On 7 July the European Commission published an impact assessment on the complicated mechanisms that collect royalties on behalf of musicians and writers from broadcasts and other uses. The draft paper says that the organisation along member state lines, with national collecting societies maintaining a monopoly, is unduly restrictive and suggests allowing right-holders to authorise a collecting society of their choice to manage their works across the entire EU. This way, it says, music can fulfil its unique potential as a driver for internet-based services. The Commission will use the paper to consult with the relevant interested parties before reaching a decision in October.

The collecting societies are not happy - arguing that such reforms would benefit only a handful of big collecting societies, while smaller, niche societies would disappear, which would have serious consequences for those trying to promote online music and protect cultural diversity.

 
Interesting paper by Peter Jaszi

I've been alerted, via the Australian Digital Alliance, to this interesting paper by Peter Jaszi. Jaszi is someone I admire - he's amazingly energetic, and he has done some very sound, scholarly work - but he also does something which many IP academics do not do - he does empirical research. He talks to people about how copyright is working in practice. One example is his project on how copyright impacts on, is understood by and is viewed by documentary film-makers (see my previous post on this study).

Anyway, this paper is interesting. The basic argument is summarised in this quote:

'Although there is much to be said for the approach taken in U.S. law to the articulation of limitations and exceptions to copyright law, and for its lynchpin doctrine of "fair use," we should take care to avoid simplistic claims of "U.S. exceptionalism" in this field, as in so many others. At a minimum, the United States has as much to learn from the experience of other national nations with limitations and exceptions to copyright as they have to learn from us. And it is not out of the question that the future of doctrines favoring public access to, and reasonable public use of, copyright materials may be found in models other than that with which U.S. lawyers and information practitioners are most familiar. Those who are committed to the cause of "balance" between owners’ and users’ interests in the field of intellectual property law need to recognize this possibility.'

Jaszi goes on to consider:

1. The weakness of the constitutional (free speech) controls on copyright in practice in the US;
2. The realities of specific exceptions, some of which, he points out, can operate like 'mini fair use' provisions; and
3. The importance of context: in particular, the way that fair use is less effective in the US owing to the huge, punitive remedies that may be obtained by successful copyright owners in copyright infringement actions in the United States.

The paper is recommended reading.

 
Here's something I missed: a debate in the US about the compulsory license that lets people do 'cover versions'

In all the excitement over Grokster, and over fair dealing/fair use here in Australia, I missed this development over in the US: the Register of Copyrights urging the House Subcommittee on Courts, the Internet, and Intellectual Property, them to repeal the section 115 compulsory license for the making and distribution of phonorecords of musical works and to restructure the collective licensing of performance and reproduction rights in musical works. The full testimony is here.

Section 115 allows artists to record new versions of any previously recorded song for a set rate. Recording artists have the benefit of access to non-dramatic musical compositions and do not have to deal with a hold-out problem - that is, songwriters can not choose not to license their works and are precluded from attempting to extract a higher price.

Commentary here:

• Ernest Miller
• Collected Comments from all sorts of people here

The Register's proposal would not entirely eliminate the compulsory license. It appears that a Music Rights Organisation (MRO) (someone like our APRA, although in the US there are several, not just one) could offer rights to cover all musical works in its repetoire for a set rate, but exclude certain "premium songs" from that rate and set a higher rate for those works. In other words, charge more to cover some songs.

It's worth noting that Australia, too, has such a compulsory license, under s 55 of the Act and the relevant Regulations. The situation in Australia is different though - most of the issues are pretty much tied up via an agreement by the main parties. It's a small market after all. According to the textbooks that I could find, and a rather dated government report, in practice, the bulk of commercial record manufacture is controlled by an agreement between the Australasian Mechanical Copyright Owners Society Ltd (AMCOS), the Australian Music Publishers Association Ltd (AMPAL) and the Australian Record Industry Association (ARIA). The agreement modifies the statutory scheme, and sets a royalty rate as an adjusted percentage of the statutory rate (8.7% of a published price to dealers). (if anyone has anything more up to date, let me know).

 
Patents and Nanotechnology (new feature: abstracts to academic papers of interest)

I've decided that every now and then I'm going to put up an abstract to a paper that looks kind of interesting. This is an academic thing, of course; feel free to ignore!

The first one is a patent paper, by a US professor whose prolific-ness constantly astounds me. It's all about the impact of patents on new areas of technology.

We've had software patents, and we've had business method patents, and we've had patents on genetic-related technologies. In all these cases there has been a lot of debate about the patentability of the subject matter. In most of these cases the big debates have happened not when the technology first came up, but a little later at least. We could have arguments about whether patenting stopped the technology in its tracks, whether it accelerated development.

Now, it seems, its the turn of nanotechnology. In a new paper, Professor Mark Lemley from the Stanford Law School argues this area is different:

Universities and companies are rushing to the patent office in record numbers to patent nanotechnology inventions. This rush to the patent office is so significant that many law firms have established nanotechnology practice groups, and the U.S. Patent and Trademark Office has now created a new technology class designed to track nanotechnology products. Three big differences between the emerging science of nanotechnology and other inventions make the role of patents more significant here than
elsewhere. First, this is the first new field in a century in which people started patenting the basic ideas at the outset. In most other fields of invention over the past century - computer hardware, software, biotechnology, the Internet - the basic building blocks of the field were unpatented. In nanotech, by contrast, companies and universities alike are patenting early and often. A second factor driving the importance of patents in nanotechnology is its unique cross-industry structure. Unlike other new industries, in which the patentees are largely actual or at least potential participants in the market, a significant number of nanotechnology patentees will own rights not just in the industry in which they participate, but in other industries as well. This may significantly affect their incentives to license the patents. Finally, a large number of the basic patents have issued to universities, who have become far more active in patenting in the last 25 years. While universities have no direct incentive to restrict competition, their interests may or may not align with the optimal implementation of building-block nanotechnology inventions.

 
Orphan Works - things is moving along in the US

Apropos of the current fair dealing/fair use inquiry in Australia, the US is currently conducting an inquiry into the issue of orphan works.

In broad terms, orphan works are ‘copyrighted works whose owners are difficult or even impossible to identify or locate’. A work may become ‘orphaned’ for various reasons: because the owner is dead; because the company which owned copyright has ceased to exist, or has changed its name, or has merged with another firm. For my past posts on orphan works, see the collection of links here.

Anyway, the US Copyright Office issued a request for comments (pdf) on the issue on 26 January 2005. The Office received approximately 850 unique comments in total (intial comments and reply comments). Now, the Office has announced that it will hold roundtables to discuss specific issues and solutions in late July and early August, 2005.

Even more interestingly, it has set up an agenda of the issues it wants to discuss. It's quite a useful list of the relevant issues that other governments - including ours - would need to consider if thinking about dealing with orphan works. Here's a brief version:

The first issue is: how do you identify orphan works?

How should the term ‘orphan works’ be defined? Should it be determined on an ad hoc approach, setting forth basic parameters of what might constitute a sufficient search under the circumstances (eg, 'reasonable efforts'), or should it involve a formal approach, incorporating a registry or registries in various forms and with various effects?

Issues here include:

1. The ‘due diligence’/’reasonable efforts’ search approach and standard;
2. The role of registries of copyright ownership information and/or uses of purported orphan works;
3. Inclusion or exclusion of unpublished works; and
4. Other threshold requirements, such as age of works, type of works, types of users, types of uses.

The second issue is: what legal consequences should follow from identifying an orphan work?

Consequences of an orphan works designation may vary in nature and degree, from limitations on the remedies available to a reappearing owner, to the payment of a mandatory fee by the user in a variety of forms, to a statutory exemption explicitly authorizing various uses, to termination of all rights in the work through entry into the public domain

Possible approaches include:

1. The ‘limitations on remedies’ approach
2. The exemption and public domain approaches
3. Payment of fees or escrow by the user

There are also some other issues here: such as what other conditions/obligations should be imposed on the user (eg time limits, notice, registration), and whether it is ok to rely (or ‘piggyback’) on previous searches by subsequent users.

The third set of issues relates to reclaiming orphan works.

What happens where a formerly unidentified or missing copyright owner reappears, and attempts to assert rights in the work? What happens where a user has incurred costs in reliance on the continuing unavailability of the original owner?

Issues here include:

1. The consequences of owner reappearance for uses in the process of being prepared for exploitation (whether derivative uses or other uses in preparation) and for ongoing exploitations;
2. The burden of proof in litigation, on issues such as the reasonableness of a user’s search
3. Statutory damages and attorneys fees; and
4. Rights in derivative works based on an orphan work.

Finally, of course, there are the international issues: in particular, consistency with international treaties.

Would solutions be consistent with Berne prohibitions on formalities? The Berne/TRIPS three step test? Would foreign works need to be excluded from the definition? How do other countries deal with the issue?

For us Aussies there is another set of issues - what are the implications of a mini-market like us adopting a purely domestic solution to the issue?

I've commented on this before. In short, my view, previously expressed, is that it is important, if possible, to avoid creating Australia-specific formalities which increase the already significant barriers for creators who wish to exploit their products internationally.

Increasingly copyright material is used, exploited, or made available internationally. If a person wishes to digitize and make orphan works available online, or incorporate orphan works into a documentary film to be displayed in other countries, that person will generally need worldwide copyright clearance. If Australia sets up a system similar to the Canadian system, where permission is sought from the Copyright Board of Canada, that permission granted under such a system will only allow use or exploitation within Australia. Permission will then have to be sought elsewhere. If every country sets up such systems, this may be done with good intentions but will lead to significant burdens on creators.

Ideally, we should be looking for a solution which is either actually global, or is readily 'internationalisable'.

 
Led Astray ... Moi?

Never..... :-)

 
New Federal Court judge, who knows IP

I said I wouldn't blog today - and I won't be making any commentary. I simply submit this piece of news.

Mr. Andrew Greenwood has been appointed as a Judge of the Federal Court of Australia. Mr Greenwood has extensive experience in a range of areas, including Intellectual Property, Commercial Litigation and
Competition Law. He is currently Queensland chair of the Intellectual Property and Trade Practices Committees of the Law Council of Australia. Mr. Greenwood is said to take the appointment on 4 August2005 in Brisbane.

 
Terror.

I can't blog today, world events being what they are. My thoughts are with all those hurt in, and by these cowardly, evil acts.

 
More on Grokster...

Pam Samuelson has now weighed in, in a paper for Communications of the Association for Computing Machinery.

The good news is (a) Samuelson definitely knows what she is talking about, and (b) it will be written for non-lawyers, because it's written for a computing journal and (c) it's short (for a lawyer) - 7 pages.

Read the paper here.

 
The IP Octopus?

Barista has this story - which you should visit just for the beautiful photos, if nothing else - about a photographer who took photos of people in a public place - high art, definitely, $20,000 a print - and is getting sued by one of the subjects.

This is an interesting one. The tensions are real - between our concern for privacy or something like it on the one hand, and our desire to allow this kind of creativity on the other.

It kind of struck a chord with me I have to say. I've just taught Trade Marks and Related Rights here at Melbourne University to my undergraduate law students. One of the issues they could write research essays on - and on which many did write research essays on - was the question of 'personality rights' - whether individuals should have the right to control, or receive compensation for, any commercial exploitation of their image.

Under Australian law at the moment, there is no such general right. Law kicks in to stop the commercial exploitation only if it is:

• misleading/deceptive - makes some misrepresentation that the subject has endorsed some goods or services, for example; or
• There is a breach of confidence involved - and even here, the Australian law is less certain than in the UK or NZ where it has been held that some photos taken in a public place may involve an actionable invasion of privacy.

In some US states, the law is different. In states, including New York, the person photographed would have an action where they were 'identifiable' (subject to some defences for free speech/freedom of expression).

According to the overwhelming majority of my students, however, the US law is better, and the Australian limitations on recovery egregious - there should be some right of recovery here. I even had students saying that the US law was more 'progressive' (!!!!!!)

Then again, maybe it's just that I teach law students. They have a tendency to think that people should be able to sue for just about anything.

 
Patent litigation funding agreement not champerty, says Federal Court

Back in January, QSPX reached an agreement with IMF regarding funding of its litigation against Ericsson. IMF is a publicly listed company which provides funding of legal claims and other related services where the claim size is more than AU$2 million. On 29 March 2005 the Ericsson parties filed a motion seeking an order that the proceeding be stayed on the grounds that it is being impermissibly maintained in an abuse of the process of the Court. The funding arrangements between IMF and QSPX were said to give rise to a potential for abuse of the Court’s processes. It was argued, among other things, that under those arrangements IMF could control or influence the direction of the litigation in ways that would serve its own financial interests in receiving a percentage of any recovery rather than the proper interests of the applicants and the legitimate purposes for which litigation can be conducted.

Yesterday, the court rejected these claims, finding that:

'the applicant retains effective legal control of the litigation. IMF has no power to direct the conduct of the litigation nor does it have any agreement with the applicants’ solicitors. Moreover the applicants are substantial commercial enterprises experienced in entering into co-funding arrangements around the world. They are unlikely to tolerate any compromise of their interests by IMF in the pursuit of its own'

 
Software patents rejected in the EU!

The proposed Directive on the Patentability of Computer Implemented Inventions (pdf, draft as at Sept 2003) has been rejected by the European Parliament. The vote was passed by 648 votes to 14, with 18 abstentions.

More news:

• The Register
• FFII (no commentary there yet, but I guess there will be)
• ZDNet
• Copyfight

 
Fair Use Review - some submissions have been made available online

It is worth point out that, while I raised the question a little while ago about whether submissions on whether Australia should adopt fair use would be published, some organisations have already put their submissions in response to the Government's Fair Use Issues Paper online. This is a wonderful move in the interests of facilitating discussion. My own is not yet up, for which I apologise, although any readers of this blog won't find it too difficult to find my views: I've already published an Occasional Paper (pdf) and Working Paper (pdf) directed specifically at the various issues being raised.

But, for the record, so far I've found:

• The Submission of Electronic Frontiers Australia, and
• The Submission of the Australian Copyright Council.

Let me know if you find any more or know of any others that I can link to.

 
In the vein of 'everyone who's anyone comments on Grokster'...

The Becker-Posner Blog have tackled the Grokster P2P case in their own inimitable way (Posner here, Becker here). Since Becker is a Nobel-prize winning economist, and Posner is a Court of Appeals judge, law professor in the US and prolific law-and-economics author, this is worth a read.

Ed Felten responds: and not positively, at least of Posner:

'It’s fascinating that Judge Posner, with his vast knowledge about the law and about economics, avoids a case-by-case law and economics approach and looks instead for a technical deus ex machina. Unfortunately, his knowledge of technology is shakier, and he endorses a technical approach that is already discredited. Nobody knows how to create the indelible marks he asks for, and in any case the system he suggests is easily defeated by encrypting or compressing the content — not to mention the problems with malicious placement of marks. In short, this approach is a non-starter'

(My own overly-long-and-complicated-and-much-less-eminent-post on Grokster below, and another shorter one here).

 
Some interesting patent news out of the United States

Something to keep an eye on, via the Patently-O Blog:

'Strong support is beginning to mount for a small case that may have major consequences on the patent law landscape.
In a petition for a writ of certiorari, KSR has asked the Supreme Court to review the “teaching-suggestion-motivation test” for obviousness that has been a stalwart of Federal Circuit jurisprudence for twenty years.

During that time, the Supreme Court has not heard a single obviousness case. Noted law professor John Duffy is on the KSR brief, which argues that the CAFC’s obviousness test goes against Supreme Court precedent, against precedent of other circuits, and is bad policy.

Now, A consortium of five major corporations, including Microsoft, Cisco, and Hallmark have filed as amicus supporting the petition. Their brief argues that the current structured test for obviousness is too easy a hurdle for patentees and that the formalities of the test undermines courts ability to truly determine whether an invention is obvious to one skilled in the art.

Patently-O has the links to the documents in the case.

 
Software patents make it into the SMH

Story here. Presents the Richard Stallman arguments, and then talks briefly about the current Australian situation.

 
This is how you know the government deadline on submissions was too tight...

1. The Australian Copyright Council has on its website a submission entitled 'Response to Issues Paper on Fair' (pdf) [perhaps a policy decision not to choose between fair use or fair deaing?]
2. The submission itself has typos - eg paragraph 7 - 'all these submission are available...'

Now, I've often made submissions and gone back later and said 'd'oh' at all the inelegancies of expression. But doesn't this suggest the deadline was jerst a leetle tight?

 
Blog licensing made fun

I called it the "Great Blog Licensing Debate" - Rusty calls it the "Australian Blog Licensing Frenzy". Either way, it's fun, fun, fun all over what Quiggin calls Ozplogistan. Rusty's chosen a different license.

For those who joined us late, see:

• Quiggin here
• Weatherall here and later here
• Starkoff here
• and now Rusty here.

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

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

 
There's a bit of a theme to the Age website this afternoon...

...which I thought was kind of interesting. And no, I'm not talking about the religious theme (warning, disturbingly twee photo of Alexander Downer behind that link).

Rather, I'm talking about the technology theme. And not just down in the technology section of the page. Up on the sidebar, quite high up, We have stories about the continuing sales of iPods, about the rise and rise of podcasting, and about digital TV - a story about how the BBC is launching an internet service allowing people to download its TV shows for later viewing, which will use a proprietary piece of software called the BBC Interactive Media Player (iMP), which apparently will use P2P (peer-to-peer) file-sharing technology. According to this story,

When any TV station can broadcast over the internet and anybody with a high enough bandwidth Internet connection can receive it, pay TV will cease to exist. Like the BBC black box, it is an interim technology. I give it 10 years, which means Foxtel might become profitable at about the same time its technology becomes redundant.

Hmmm. Guess all these themes mean that the Inquiry Colloquially Known as the iPod Inquiry is all the more important. And controversial. Any day now and the government will be wishing it had subcontracted out, at least to something like the Committee Formerly Known as the Copyright Law Review Committee...

 
The great blog licensing debate continues...

Now David Starkoff's relicensed his blog, applying a Creative Commons license.

And his choice of license has also raised questions - just like I raised questions about Quiggin's choice of license.

So Quiggin asked questions about my license and the effect of the conditions I had placed on it; and AJ asks questions about the effect of Starkoff's license conditions. And to my mind, AJ asks the most pertinent question of all:

How is the average Joe supposed to work out all this?

This debate - occurring among the relatively educated and informed about basic copyright matters - highlights an interesting thing about Creative Commons licensing. And that is a quite simple point: no matter how simple you try to make these things, there are still problems!

That's not to undermine the value of the Creative Commons scheme. I can see situations where it might be particularly useful. I guess here I'm thinking of, say, sound recordings and things like that, where people want to genuinely build on what has gone before.

But the fact remains that these licenses are not a panacea. In fact, even some of their greatest proponents - Lessig among them - see the Creative Commons solution as almost second best - an attempt to build a 'sensible layer' of 'reasonable copyright' in the absence of such sense from the underlyinglegal system which is overprotective:

'[289]Our aim is to build a movement of consumers and producers [290] of content ("content conducers," as attorney Mia Garlick calls them) who help build the public domain and, by their work, demonstrate the importance of the public domain to other creativity. The aim is not to fight the "All Rights Reserved" sorts. The aim is to complement them. The problems that the law creates for us as a culture are produced by insane and unintended consequences of laws written centuries ago, applied to a technology that only Jefferson could have imagined. The rules may well have made sense against a back-ground of technologies from centuries ago, but they do not make sense against the background of digital technologies. New rules—with different freedoms, expressed in ways so that humans without lawyers can use them—are needed. Creative Commons gives people a way effectively to begin to build those rules. ...
[292] Building a public domain is the first step to showing people how important that domain is to creativity and innovation. Creative Commons relies upon voluntary steps to achieve this rebuilding. They will lead to a world in which more than voluntary steps are possible....
[293]We will not reclaim a free culture by individual action alone. It will also take important reforms of laws. We have a long way to go before the politicians will listen to these ideas and implement these reforms. But that also means that we have time to build awareness around the changes that we need.'

Creative Commons licenses strike me as a peculiarly American solution to a problem that we don't necessarily have in spades here (yet). The attitude of 'Freedom and Contract for all' is terribly American. Yes, there is an international 'porting' movement, which we have seen in Australia - but what I'm saying is that the idea of this kind of license is a bit American, and we should recognise the differences between the US system and ours.

I would far rather see our fair dealing defences broadened a (sensible) bit, ensuring that we all have certain, sensible freedoms to build on what has gone before, than I would see Creative Commons licensing take off. If, and only if, such sensible re-working of fair dealing defences is a pipe dream - as it may be in the US, but isn't necessarily in Australia given the current review - then we should focus more energy on building that sensible layer.

All that said, why do I apply a Creative Commons license to my material? Why buy in to this American solution? Because it seems to give people some comfort to see my positive affirmation on the blog that people may re-use the material. In other words, I'm using it not as a legal tool, but as an indicator of attitude. I suspect I'm not the only one...

 
US Supreme Court - Sandra Day O'Connor retires

O'Connor J has been a swing judge in many crucial cases (including, say, on abortion issues). This is bound to lead to a nasty nomination fight.

But this ain't my area: for commentary, see:

• Legal Theory Blog
• Balkinisation

 
Invitation to readers: raise your questions!

Next semester I am teaching 'Internet and Law' here at the University of Melbourne. The main form of assessment is a research essay of 5000 words.

My students are always looking for interesting research topics. Many of my readers may have encountered particular issues or questiosn where they've not found clear answers in the existing texts or materials.

So here's the invitation - if you have a topic of burning interest, or something you think is important or underresearched, and it relates to some Internet-related question of law, email that question to me (remember, delete the caps bit from that email address!) or put it in a comment. Let me know also whether you are interested in seeing the results if I have any students who do the research and that research is any good, and I can put those students in touch with you (but remember, it won't be until late November/early December!).

 
Software Patents: Boyle speaks, and clearly

Whenever Jamie Boyle of the Duke Law School speaks, he speaks clearly on IP issues. Last year he spoke via video-link at a UNSW conference organised by Graham Greenleaf and David Vaile, and it was like a clear and searching light was shone on the key issues raised when we talk about 'unlocking ip'.

This time he has software patents in his sights. Go and pay the Financial Times a visit, and read this short, clear article. In case further temptation is required, here's a taste:

'It does not help the debate that well-intentioned people simply disagree about what the proposed directive actually means; an indication of the dangers involved in law-making about property whose boundaries are marked, not by fences or walls, but by vaporous ideas and concepts. A property right crafted with one goal in mind can spread, amoeba-like, to cover situations its drafters never intended. That was the certainly the experience in the US.

Which side in the European debate is right? One of the problems is that, as normal, the argument proceeds almost entirely without evidence. ...

There is, however a very impressive empirical literature of the expansion of patentability on the US software industry that some European policy makers seem to have missed.'

Go and read the whole thing.

 
Quiggin goes all creative and common

John Quiggin has finally put a Creative Commons license on his blog (I say finally, which is very cheeky of me - I only put mine under a Creative Commons license about a month ago).

What's interesting, though, is that John and I have chosen different licenses. John chose a license with the following conditions:

• Attribution. You must attribute the work in the manner specified by the author or licensor
• Noncommercial. You may not use this work for commercial purposes
• Share Alike. If you alter, transform, or build upon this work, you may distribute the resulting work only under a license identical to this one

As John sees it, this license:

'pretty much sums up the standard expectations for a blog. Anyone can use as much as they like for a non-commercial purpose, as long as they allow others to do the same with the derivative work, and acknowledge my original authorship, either by name or with a link back to the original post.'

I chose a different license - I have the attribution requirement (because I'm a shameless self-promoter and want to see my name in lots of places), and the non-commercial requirement (because I don't want other people making money out of my ideas without asking). But I didn't choose the 'Share-Alike' Term.

Now, it should be noted that I, not John, am the minority party here. Apparently about 52% of people who choose a Creative Commons license choose a Share-Alike term.

So why did I choose not to impose a 'share-alike' requirement?

Because, while I agree that in Blog-land that's what we do - everyone gives, everyone gets, that's the gift economy - I'm not sure that want to impose that on other people. I'm not sure I want to dictate to people what they do with their stuff, even if their stuff incorporates some of my stuff. I don't want to constrain the creative and expressive choices of others. To me, it's a bit like proselytising. I'm quite prepared to put my money where my mouth is (by freely licensing my stuff) but that's as far as I want to go.

I'm sure that this kind of term, which derives from open source programming licenses like the GPL, is a good idea in programming - because computer programs are often functional and modular - they build in bits. I don't think creative works are necessarily the same, and so I don't think that that kind of term is anywhere near as easily justified in this context.

 
Almost choked over my brownie on this one...criminalising unauthorized decoding of pay tv
[note: amended/updated on Saturday 2 July]

There I was this afternoon, quietly drinking my coffee and eating my brownie (well, it's Friday afternoon and I've been marking essays), when I dropped by Warwick Rothnie's blog - and nearly choked on my brownie.

Here's the press release from the Attorney-General:

“'Following a 6 month review by my Department, the Government has decided that criminal penalties should be available against those who access Pay TV broadcasts without authorisation and payment of the subscription fee,' Mr Ruddock said."

6 month review??? Hang on, I thought, I'm sure I saw something about this only recently.

And indeed, that is true. On 27 May 2005 the AG's Department put out an Issues Paper, and here's the press release:

The Australian Government is reviewing the laws relating to the use of unauthorised equipment to access pay TV signals without paying subscription fees, Attorney-General Philip Ruddock announced today. Mr Ruddock has released a discussion paper as part of a Government policy review concerning subscription broadcasts.'

Now of course, you can do a 6 month review where you review the matter for 5 months, then issue an issues paper, giving less than a month for submissions, and then make a decision less than 2 weeks after the submission deadline. But it's a pretty funny way of running a 6 month review. I remember saying at the time of the Issues Paper that:

[The Attorney-General's Department is] not particularly serious about wanting feedback it seems - the date for responses is 17 June 2005.

And, low and behold, only 13 days after the closing date for submissions on the question, the AG has made his decision.

But then, maybe the AG's department and the AG are just terribly efficient.

Maybe, but look at the exchange of letters between Zoellick and Vaile back in late 2004, on the basis of which the FTA came into force. Here's what the US said at the time:

'The United States remains concerned that Australia does not appear to apply criminal penalties to all willful and unauthorized reception and use of satellite signals, commercial or otherwise, as required by our Agreement. The United States is firmly of the view that Article 17.7.1(b) of the Agreement requires criminalization of this activity, including viewing of pirated signals in teh home. You have explained that Australia takes a different view with respect to home viewing.

We take note of and welcome Australia's commitment to undertake a prompt review of this situation. We expect that this review will include a full opportunity for participation by US and other interested parties [ah, so that's why the Issues paper!].

We also welcome Australia's commitment to introduce legislation that seeks to criminalize all willful commercial receipt and use of satellite signals that are decoded without authorization. We are proceeding based on the Australian Government's commitment to introduce this legislation and have it enacted into law expeditiously."

Given these kinds of responses, it is hard not to conclude that the results of the review were pre-ordained. Frankly, if the decision about criminalisation was already made, it really would be better not to pretend to have consultations, and an Issues Paper. Have a real consultation, or don't bother. Lord knows that people in copyright land are kept busy enough with all the other issues that the government has been, and is dealing with.

I'm also not at all in agreement that stuff that goes on in the home, in relation to this highly technical field which is copyright, should be criminalised. By all means make it illegal, but criminal? At the time that the FTA Implementing legislation was introduced, the following statement was included no less than 14 times in the explanatory memorandum to the US FTA Implementation Act, that:

'the Government’s policy [is] that the copyright law should not unduly intrude into the private sphere.’

The government has also in the past protested against recommendations of government committees which represented an ' unnecessarily heavy-handed intrusion into the private sphere'. It doesn't get more intrusive than imposing criminal law sanctions into activities in tv-watching at home.

 
Fair Use/Fair Dealing Submissions due Today!

Hope you all got them in.

Now here's a question: will they be published? The CLRC used to make submissions available - or at least did in its most recent review (not sure about earlier ones and can't be bothered looking).

But will the Copyright Law Branch? You have to hope so, otherwise this is not much of a public debate, nor much of a consultation process. But then, unfortunately public consultations don't appear to be a high priority in this review....