Software patents in the UK

IPKat reports that the UK government has announced opposition to the extension of patents to cover inventions which are purely code. The announcement states in part:

"The Patent Office has been in consultation with the software industry since 1994. Responses to both formal and informal consultation have indicated that the law does not need to be changed, but requires clarification.

The Patent Office estimates that up to 20% of patent applications received are for inventions which use software. Mere computer program listings, like lines of code, are protected by copyright but excluded from patent protection in the UK and Europe. However inventions in which software makes a technical contribution, like a mobile telephone or car engine management systems, have always been and will continue to be patentable. Patents like these underpin the research and development infrastructures of many hi-tech businesses in Europe."

Cf Australia, where, according to IP Australia's fact sheet on the issues:

• Software is patentable if it includes a mode or manner of achieving an end result that is artificially created and has economic utility;
• patentable software would include "software directed to the operation of a computer. For example such software may control data flow within the computer, or enable the computer to operate faster, or allow the computer to handle larger files, or produce a better quality of output display."

 
Patents and Experimental Use

The ACIP Options Paper, "Patents and Experimental Use", has now been put online. (pdf) It's quite a paper: it addresses a big issue in patent law - whether there is a defence for experimental use, something which is unclear in Australian law. Submissions are due by 28 February 2005.

In the US, there has been a lot of angst since the decision in Madey v Duke which severely limited any experimental use exception in the US. In fact, the National Academy of Sciences, in its report, A Patent System for the 21st Century, has made recommendations to create an experimental use exception, following that decision (the executive summary of the report can be found here (pdf)).

Here in Australia, the ALRC recommended, in its report this year on Patents and Genes, that an experimental use exception be created. The ALRC recommended:

The Commonwealth should amend the Patents Act 1990 (Cth) (Patents Act) to extablish an exemption from patent infringement for acts done to study or experiment on the subject matter of a patented invention; for example, to investigate its properties or to improve upon it. The amendment shoudl also make it clear that:
(a) the exemption is available only if study or experimentation is the sole or dominant purpose of the act;
(b) the existence of a commercial purpose or objective does not preclude the application of the exemption; and
(c) the exemption does not derogate from any study or experimentation that may otherwise be permitted under the Patents Act.

Simultaneously with the ALRC inquiry, though, ACIP have been conducting their own inquiry.

The Options Paper is the result. And quite a massive document and exploration it has turned out to be, at 62 pages - much more detailed than anything the ALRC were able to do, given the broad scope but narrow focus of its inquiry. It's interesting, because it considers all kinds of options, which are of broadly five different kinds:

• Make experimental use an infringement (Option A);
• Do nothing and see what the courts do, if and when the issue comes up (option B);
• Create an express experimental use exception (Option C - all different ways of drafting this are considered, which vary in both the level of detail of the drafting, and the kind of exception. Options considered include a "fair dealing" (fair use) type exception, or an exception for experimentation "on" the subject matter of the invention);
• Restrict a patentee's rights to only the exact thing and use they have disclosed (which would mean experimental use was not covered) (Option D);
• Provide statutory licensing for experimental use (Option E).

Judging from what they've asked for submissions on, it looks like ACIP may be leaning towards one of the different versions of option C - an express exception, probably quite a detailed one - although they are also quite (surprisingly) positive about the "do nothing" option.

Thought: has "fair dealing" really turned out to be such a success in Australia that we want to adopt it as the model? I would not have thought so.

Update: ACIP has issued a revised paper - the revisions are basically to fix a couple of mistakes on page 13. In essence, if you've looked at the first version: they removed the word "fair" from option C8, where it shouldn't have been in the first place, and correctly noted that C8 is a combination of options C3 (not C2) and C6.

 
Felten on Region-Coding

US Computer Science Professor Ed Felten has an interesting post over at Freedom-to-Tinker on region-coding: asking the question, should the US allow region-coding? It's a question of particular salience for us here in Australia at the moment, as region-coding has been cited as one of the big problems with anti-circumvention laws, especially post-FTA anti-circumvention laws.

On the assumption that US prices are higher than overseas, Felten argues that region-coding is bad for the US - removing it would mean US prices would go down and prices in other countries would go up.

Interesting. Two questions:

1. would we really see a 'world price' that is, in essence, a weighted average of the prices all over the world under the current system? One wonders, because it doesn't seem that likely that people in some countries would pay such a price. Which might lead to some pressure for lower prices in order to get sales volumes.
2. Would a 'world price' be higher or lower than the current Australian price?

 
It wasn't going to be long... Becker/Posner blog on patents

Having observed Posner's recurring IP theme when he was on Lessig's blog, I was expecting the new Becker-Posner blog to enter into IP waters quite quickly.

Expectations fulfilled. This week's debate on the blog is about patents, and specifically, pharmaceutical patents. See the two posts, Posner here, Becker here.

Broad summary: Posner points out all the 'usual suspects' - the problems with the patent system as it actually works; patent thickets, that kind of thing. The problems with the US patent system in particular are probably better explored in the recent Lerner/Jaffee work, summarised in many places, including this article.

What is different about Posner's post is that he also focuses on something we don't see argued about very often these days - patent term. Specifically, the extension of the patent term for pharmaceuticals by an additional 5 years, built in to reflect the long market approval process for pharma products. Interesting, but worth noting that the extension of patent term for pharmaceuticals would be extremely difficult to change, given that it is being built in to all the US bilaterals these days (see, for example, Art 17.9.8(b) of the Australia-US FTA), and many European Countries also have a "supplementary protection certificate". In other words, Posner is well and truly swimming against the tide here.

Becker expands generally on all the well known reasons why patents are important in this field. Useful reminder, because we tend to assume, all too readily, that pharma companies are the enemy.

For comments tending in the other direction, have a look at the New York Review of Books article basically summarising Marcia Angell's book, The Truth About Drug Companies, here.

update: EFF's Jason Schultz has also weighed in on the patent debate in Salon, here. Basically, Schultz's argument is that where patents are worth more to 'licensing firms' - as weapons - than to companies who use patents, then something is 'broken'.

The problem with Schultz's argument is that there's a flipside he's not acknowledging. For some firms - particularly small research firms - acquiring patents to license is exactly what they need to do. Think biotech - a lot of the small research-based firms, many of them university spin-offs, don't have a hope in hell of taking a new drug, say, through safety trials etc and to production. Their main game is developing the technology to a point where they can license or sell to someone else. See Joshua Gans' work on this (pdf).

So the fact that people are developing patents to license, or that patents have 'licensing value' is not the problem. It is the behaviour that Schultz points to that is the problem.

And the policy problem is how do you draft a law that can differentiate between 'good' licensing behaviour and 'bad' licensing behaviour? Competition law may be the thing here, but it's a really hard question.

update 2: Jason points out to me that his argument is more specific to software and internet patents, and to the bankruptcy scenario - and indeed it is, when you read the article. And my comments above should not be read as saying that Jason's points are invalid - they are perfectly valid, and the kinds of situations he outlines do seem to defeat, or circumvent, the purposes of the patent system.

That still leaves the hard questions, of course. You might argue that there should be no such thing as software patents. That's a whole different argument from the one presented in Schultz's article, which talks in general terms about the 'patent system'. And it doesn't necessarily solve the bankruptcy problem, which could arise in other areas of technology (even if more common in the dot com area).

Or you are left with the problem I pointed out above: drawing a real distinction between good licensing behaviour and bad licensing behaviour.

Interesting issues indeed!

 
A great quote on trade mark and proving consumer confusion

James Grimmelman, over at Lawmeme: a classic quote on consumer confusion in trade mark law:

"'consumer confusion' is one of those ugly heavily-contestable fact-laden swamps that often turn trademark litigation into a sodden battle of dueling expert reports based on specially-commissioned studies. "

he he.

 
Just couldn't keep their hands off it: US Supreme Court grants cert in Grokster

Yes, the US Supreme Court is a bit like our High Court - IP - especially copyright - is just too interesting to keep their hands off. The US Supreme Court has granted certiorari (like granting special leave here in Australia) in the MGM v Grokster case, a decision (pdf) of the 9th Circuit Court of Appeals.

Relevance for Australia? MGM v Grokster is the case which held that the distributors of Morpheus and other fasttrack peer-to-peer file sharing applications could not be held liable under copyright law (under contributory or vicarious liability - doctrines which roughly (very roughly) correspond to our authorisation liability). It's the judgment that is going to make us here in Australia look terribly over-protective if Kazaa is held liable for copyright infringement. It's the case that could overturn, or narrow, the very famous Betamax defence - which 20 years ago held that producers of video recorders were not liable for copyright infringement, provided their devices were capable of substantial non-infringing uses.

Apparently the case will be heard in March, which means a judgment next year some time - which could overlap in interesting ways with any appeals in the Kazaa litigation here. Maybe we should organise a conference for all the judges in these cases....

For more on Grokster, see:

• comments from Copyfight on the decision to grant cert: here, and here
• von Lohmann's piece on the 9th Circuit decision;
• Reese & Lemley's paper on suing infringers - has a large section on the secondary liability issue in digital copyright.
• The EFF's page on Grokster: collects briefs, judgments etc from the case

 
Three quick links

Finishing off some marking, but it would be remiss of me not to note these three things:

• Kazaa Litigation: with the Kazaa trial going on, this running commentary is what people are reading to get the 'inside dirt'. Don't you just love the Internet, and the arrival of blogs? Up to the minute commentary on Bounce Bounce Bannon (!) and Lurch, the man who never smiles.... The links at the bottom give you previous days' commentary.
  
• More sources on the recent FTA brou-ha-ha: the wonderful David Vaile has collected all the important stuff, including links to the transcript from the urgent Senate Legal and Constitutional Affairs Committee, here. Thanks for the plug, David.
  
• New Book on the Creative Commons: A new book has been released, " International Commons at the Digital Age -La création comme bien commun à l¹ère numérique". (pdf) It's a book on the iCommons thing - the process of 'porting' creative commons to other jurisdictions, but it is also about the idea of Creative Commons more generally. It looks like being quite a resource on the creative commons and open content licensing, and well worth a look. What's more, it's licensed under a Creative Commons License. Gotta love that. And don't forget, if you are in to this stuff, you should remember the QUT Conference on 18 and 19 January 2005, "Open Content Licensing: Cultivating the Creative Commons".

 
Apparently I'm not the only one fuming

I've had a bit of a fume below about the new legislation implementing the amendments to the FTA agreed between Minister Vaile and Minister Zoellick: see my posts here and here.

Well, apparently I'm not the only one concerned: the IIA have jumped up and down about the extent of the changes. See this story in the Australian.

 
On the relevance and desirability of blogging

I recently returned to blogging after a hiatus: a hiatus motivated by the need to focus on other things: (a) having a life, and (b) focusing my work time on work that will be recognised by the academic environment in which I work.

I received quite a lot of email from people noting that blogging has a social and academic value (thanks! it is encouraging!!! and the comments are of course the main reason I'm back!!!).

In particular, it has social value as a kind of "outreach" - by me, purported IP expert - to the non-expert, but IP-interested public. A public which is bigger now than it was even 12 months ago.

It has academic value in the sense of generating 'name recognition' - which, as everyone knows, is one of the aims of academic life.

Both these values are undeniable. I've already felt their effects. I enjoy blogging and imagine that I will continue, even if not as obsessively as perhaps I was blogging earlier in the year when FTA developments seemed to require immediate, informed commentary and engagement.

And if I needed further encouragement for blogging, it is this: that a Nobel Laureate in Economics (Becker), and an influential judge and scholar (Posner), have thought fit to establish their own blog. Illustrious company (if I may be so presumptious) indeed.

 
Our "technical amendments" to the Copyright Act: Australia caves in, big time (more comments).

I have a few more comments on the new Copyright Legislation (Amendment) Bill (find all the necessary links to legislation here or via Bills Net (current bills)).

First, and most importantly, people interested in the FTA and its IP provisions should really read the latest correspondence between Trade Minister Mark Vaile, and US Trade Representative Bob Zoellick. Vaile wrote to Zoellick (pdf), and then Zoellick wrote a letter back.

The correspondence demonstrates one, key thing. When the government says that the matters dealt with are merely 'technical', that is only half true. The amendments are, indeed, highly technical, and several of them are really of very little practical effect. However, the amendments, and the correspondence between the Ministers, are far from technical, and extremely significant, for the following four reasons.

First, The letters introduce new obligations, in addition to those which already existed in Chapter 17. This is particularly true in relation to the temporary copy provisions. Under AUSFTA Chapter 17, we agreed to include temporary copies as being something a copyright owner had a right to control (see Article 17.4.1). What exceptions we introduced were entirely within our discretion, so long as we complied with the Berne Three Step Test (17.4.10(a)). Now, as a result of these letters, we have agreed to implement a particular exception in relation to temporary copies, and no other. So I do not understand the following comment in the Second Reading Speech:

"I ... want to make it clear that the Agreement has not been changed."

I just cannot see how that is true, given the specificity of the correspondence.

Second, the letters directly contradict the public position of the negotiators in the Senate Select Committee and JSCOT. During those hearings, the government representatives constantly affirmed that the text had flexibility, and, in particular, what while copyright law had been strengthened, Australia retained the right to introduce its own exceptions. This position is captured well by the following quote from Toni Harmer during the Senate Select Committee hearings:

"A broad point—and perhaps it is one that I should have made earlier with respect to the FTA in general and the copyright provisions—is that it is correct to characterise it as having strength in copyright in the FTA but we have also been very careful to ensure that we maintain the ability to put in place exceptions where we regard those to be appropriate to the Australian circumstances." (Hansard, Tuesday 18 May 2004, FTA92, available here).

At least in relation to temporary copies, this is no longer the case.

Third, and more generally, the level of detail that these letters go into shows that Australia has little flexibility when it implements this Agreement. I argued, before the Senate Select Committee, that we were kidding ourselves if we thought we we were going be free to interpret this Agreement as we liked. These letters prove this to be true. The US apparently made it a condition of going forward with the agreement that we did things like add the word "temporary" and "necessary" to a particular provision implementing the Agreement.

Fourth, read the tone of the letter from Zoellick. There's choice phrases dotted throughout: things like "we will be monitoring this matter closely, and reserve all rights"; "the United States remains concerned...", "the United States reserves its right to challenge the consistency of these amendments with such obligations...". And finally, this paragraph:

"...bringing the Agreement into effect is without prejudice to any future action the US Government may take regarding compliance of Australia's laws and other measures with the Agreement, including existing and proposed laws and measures referenced in your letter and this response.

If subsequent practice reveals problems with the full exercise of US rights I have discussed above, Australia should expect that we will take appropriate remedial action."

Hmmm, do the words "bullying threat" spring to anyone else's mind?

Finally, I should note that I may have been incorrect in my interpretation below, which asked whether, perhaps, the amendments to the temporary copy provisions have an impact on parallel importation. [***WARNING: technical legal stuff follows; lay readers proceed to next paragraph....] I say may be incorrect, because the more I look into it, the more confused I get. You see, I had forgotten that the term "infringing copy" has a definition in the Copyright Act, s.10. That definition specifically recognises that, in some cases - those areas where Australia allows parallel importation - "infringing copy" does not include legitimate copies purchased overseas and brought into Australia. But, to be perfectly frank, I have no idea how that definition, in s.10, will end up interacting with the new s.43B(2). I think it's meant to mean that copies made from a legitimately parallel-imported item will not infringe. But it is not clear to me that it will in fact work that way. For what it's worth, it seems to me that there was an eminently simpler way to achieve the aims of the government here. And that is, to simply change the definition of "infringing copy" to make sure it covered the situation outlined in the Explanatory Memorandum - where someone views a work online that is an infringement overseas. What's happened here is INCREDIBLY complex drafting, that is really confusing, even to experts.

The real problem with the temporary copy provisions is simple. There is no real reason to make temporary copies "infringements". 99.999999% of the time they have no economic significance.

The only reason why copyright owners want temporary copies covered is as a "hook". It enables them to make twisted, complicated legal arguments. Look at all the cases where temporary copies have been argued about before the courts. They have been used to try to force video stores to buy more expensive "rental" versions, despite the absence of an exclusive rental right (AVRA v Warner). They have been used in the Sony litigation to make an argument about why regional playback control prevents "infringement". In Canada, I believe temporary copying has been used as an argument to make ISPs liable for activities of their users. In the US, they have been used to try to corner aftermarkets for software trouble-shooting services (MAI v Peak)

Given that copyright for temporary copies is only ever really used in this twisted way, it seems to me that either (a) they should not be covered by copyright, or (b) exceptions should be massively broad. After the FTA, we couldn't do (a). But we could do (b). Now, as a result of these side letters, we can't do (b) either.

A final point should perhaps be made about what this means for the future. Under the AUSFTA Implementation Act, and this new Bill, the circumstances in which an individual - ordinary, everyday consumers - potentially infringes copyright have been significantly expanded. That means we need to think about what general exceptions will be required to ensure this is not the case. We do need to think about fair use, and we do need to think about private uses of copyright material, and when these should be allowed without infringement.

 
New IP Blog in town

Warwick Rothnie, well known IP lawyer and Victorian Barrister, has a blog, here.

 
New Copyright Amendment Bill in Australian Parliament

So we have a new Copyright Amendment Bill in the Australian Parliament, introduced yesterday. News stories here (the Australian).

You can find the Bill by going to BillsNet, clicking on "current bills" and then looking for the Copyright Legislation (Amendment) Act 2004.

Unfortunately, when you go to the Bill, it won't mean much to you, because it's all in the form of amendments to existing legislation, both the Copyright Act itself, and the US FTA Implementation Act. It's all a little confusing. However, if you go to the Explanatory Memorandum (also on BillsNet), you'll get a much better idea of what is going on here.

So what are the main changes? Here's my 2 cents worth, although note it's on a really quick perusal...

1. Changes to the Temporary Reproductions provisions

Under the USAFTA, Australia had to extend copyright protection to all temporary copies - including the ones made in the temporary memory of computers, and DVD players, and things like that. To make that change, Australia changed its definition of "material form" in the Copyright Act, to include all reproductions in "any form (whether visible or not) of storage of the work".

That led to an issue: what about all those temporary copies made in the ordinary course of any use of a copyright work, in computer memory/RAM/buffers/caches? Were all of them going to be included?

To avoid the worst problems this would cause, an exception was created, in a new section 43B (in the USA FTA Implementation Act). The new s.43B(1) provided that:

"the copyright in a work is not infringed by the making of a reproduction of the work if the reproduction is incidentally made as part of a technical process of using a copy of the work"

So, copies made incidentally, in the computer, would not count - they would be covered by an exception. BUT, there was also an "exception to the exception" - if the temporary copy was made from an infringing copy, the temporary copy would be an infringement.

As I pointed out at the time, and as the Parliamentary Library researcher Jacob Varghese commented in his research paper (Appendix to the Senate Select Committee Report), the result is that suddenly, when you play a pirate DVD, you are infringing copyright. This was new, of course. Usually, the purchasers of infringing copies are not infringers themselves. Suddenly, all kinds of consumers caught by the Copyright Act, when they weren't before. The Senate Select Committee was worried, saying (at para 3.200):

"[The Committee is] particularly concerned about the 'exception to the exception' anomaly which could lead to end users of infringing materials becoming infringers in their own right. This is a significant, perhaps unintentional, extension to the scope of copyright law in Australia. The Committee understands that removal of proposed subsections 43B(2) and 111B(2) would not be prevented by the AUSFTA."

They were rightly worried. The inclusion of "temporary copies" means that all the copies made in a Sony Playstation Console, or DVD player, are now within the exclusive rights of the copyright owner. The "exception to the exception" means that copyright owners can argue that playing an unauthorised game, or unauthorised copy of a movie, is an infringement. And that is important because that is exactly what has been argued in the Sony v Stevens litigation. If playing unauthorised games leads to infringements, then technological protection measures (TPMs) which prevent the playing of unauthorised games are preventing infringement. And suddenly the anti-circumvention laws - the laws that make it illegal to 'break' TPMs - have a much broader reach.

With the new Copyright Amendment Bill, this concern has been ignored. In fact, the 'exception to the exception' has been broadened. In other words, even more things will now be infringements than were before - despite what the Senate Select Committee said.

In particular, what the Bill does is:

confine the exception to "temporary reproductions" only

Previously, 43B applied to all reproductions. I can see why this was considered necessary: permanent copies might be made in the course of a technical process of using a work)

confine the exception under 43B to reproductions made as a necessary part of a technical process of using a copy of the work

Previously, it was just reproductions made as part of a technical process). I have no idea what that is meant to mean. What does 'necessary' mean? Does that mean that if the technology could be designed differently, in a way that does not require a temporary copy, then the exception doesn't apply? Does that mean that if it is more efficient, but not strictly necessary, to make a temporary copy, the exception won't apply? Actually, I think that adding the word 'necessary' is likely to have little significant effect, other than to provide lawyers with yet another thing to argue about in a particular case. Ugly. In fact, my view is that this is interesting not for its legal effect, but what it tells us about the political process. What I think this means is that we have seen quite a lot of interference by the US in the Australian drafting process, because it's a pointless addition, that just shows they want our legislation to really match theirs...

expand the 'exception to the exception' to exclude temporary copies made from copies made overseas, which would be infringing if made by the same person in Australia

What the government says it is doing here (in its explanatory memorandum) is making sure that, if I access a copy on an overseas site, and that copy is unauthorised (so would be an infringement in Australia, if it was on an Australian site), then the temporary copies made when I access the site here in Australia are infringements.

OK. Now, I could be wrong here, but doesn't the text go further than that? Doesn't the text mean that the Government is proposing to strengthen the hand of copyright owners in preventing parallel importation, contrary to the whole policy of the government for the last few years? As I read it (please, correct me if I'm wrong), this means that if A makes an authorised copy of copyright work X in Indonesia, but B owns the copyright in X in Australia, and I buy the copy of X in Indonesia from A, and bring it to Australia, and play it in my machine, and a temporary copy is made, I'm infringing. Because if A had made the copy in Australia, they would have been infringing. Looks like strengthening the ability of copyright owners to engage in market segmentation to me. And, if I import copies from A into Australia (even if that is allowed under parallel importation law), I might be authorising infringement because all the temporary copies made by my customers are infringements.

2. Effects on ISPs: excluding the definition of "financial benefit"

Another interesting feature of this Bill is its change to the ISP provisions. As we all know, one of the things we got with the FTA was US style safe harbours for our ISPs. That meant, if ISPs comply with the system for helping copyright owners (notice and take down of copyright material), then they get protection from liability.

As far as I know, the regulations that will govern most of this haven't been released yet, so we really don't know how all this is going to work.

But what we see in this bill is the exclusion of the definition of "financial benefit". In the USA FTA Implementation Act, there was a definition of "financial benefit", as follows:

"financial benefit", in relation to a carriage service provider, does not include a benefit that merely results from the level of activity on the carriage service provider's system or network.

The definition of "financial benefit" is important, because one of the conditions that ISPs must comply with to get the protection of the 'safe harbours' is that they must not receive a "that is directly attributable to the infringing activity ". So, this definition of financial benefit was a good thing to have in the legislation, because it meant that copyright owners could not argue that the mere fact that there was more activity on an ISPs servers was a "financial benefit directly attributable to" the fact that people were using the ISP to exchange copyright files.

What is more, the Bill also removes the provision that said that financial benefit was directly attributable to infringing activity "only if the carriage service provider knew or ought reasonably to have known that an infringement of copyright was involved".

Upshot: copyright owners will be able to argue that ISPs who do not know that infringement is going on, and who are receiving a financial benefit only through being able to charge more for higher levels of activity, are receiving a financial benefit directly attributable to copyright infringement - and should be deprived of the Safe Harbour. The court may not accept this argument, but it is now open to be made.

3. Broadening the criminal provisions

The other big thing in this Bill is that it broadens the criminal provisions.

Under AUSFTA, we have had to broaden criminal liability. Traditionally, criminal liability only applied to infringements that occurred for commercial purposes, or, in some cases, to distributing copyright works to an extent that prejudicially affected the copyright owner. So, people who sold infringing stuff, or the students who put a whole lot of infringing files on the Internet, could be criminals, but otherwise you were safe.

Under the AUSFTA, we had to broaden criminal liability to cover "copyright piracy on a commercial scale", which is supposed to include "significant wilful infringements of copyright, that have no direct or indirect motivation of financial gain", and "wilful infringements for the purposes of commercial advantage or financial gain".

What the government did in the US FTA Implementation Act was simply add "with the intention of obtaining a commercial advantage or profit" to all the criminal provisions, as a condition. Arguably, this made it harder to prove criminal infringement, as Varghese pointed out.

The new Bill now changes this, so that it will be sufficient either "by way of trade" or "with the intention of obtaining a commercial advantage or profit".

Yes, the criminal provisions are now broader. But this probably was actually necessary under the FTA.

I think the ISP stuff, and particularly the temporary copy stuff, is much more significant.

 
OK, I can't help myself. I'm back.

I've been in the old "publish or perish" land that affects all us academics. Unfortunately, as far as I can tell, publishing on a blog, even though useful (thanks to all those who've been asking where I've been...) doesn't count for DEST points and hence is not really something that I can get any recognition for, in academic-land.

BUT, of course, there's just far too much going on at the moment for me not to comment. So in the next few posts, I'll give a few "cents worth" on some of the current stuff.

 
Is there a trend here?

The talk of the town is open content. What do I mean? Well:

• The Baker & McKenzie Cyberspace Law and Policy Centre at UNSW are staging a conference in November, called "Unlocking IP"
• The QUT Law Faculty and "Creative Industries" will be hosting a conference in January, on basically the same set of issues, called "Open Content Licensing (OCL): Cultivating the Creative Commons";
• The BBC are creating the "Creative Archive", which will upload thousands of hours of archive BBC footage on to the internet to be watched again and reused by the public. Another story on this development can be found in the Guardian, here. The BBC press release is here.
• Copyfight have a whole collection of articles and links on open content type stuff.

Real trend or bandwagon? I guess that's something we'll be talking about at UNSW in November. But with institutions like the Beeb making material available, perhaps there could be something here which is real for creativity.

Compare, by the way, the attitude of the ABC towards re-use of ABC material, exposed quite recently on Media Watch. They wouldn't even let a documentary maker license footage, until the documentary maker got permission from the politician concerned.

 
Today I'm in an angry mood.

Once upon a time, I was a nice corporate lawyer, working in IP, thinking IP law in Australia often - not always, but often - drew the right kind of balance between the very real need to ensure that people get paid for their creative work on the one hand, and the sometimes opposing need on the other hand for people to have access to the wealth of material, created by all sorts of people, for education, enjoyment, and new creation. I figured there was pretty good evidence that we had a balance right - after all, there is a whole lot of creation going on, and very wide access to copyright materials. And I always thought that Australia was broadly speaking a pretty pragmatic kind of place, where we would not see the kind of extremism that has been long lamented in the United States.

Recent developments, however, disturb me. I think we are moving a long way away from what IP law is meant to do. IP law is overreaching. And I hate to say it, but it is having a radicalising effect on me, and on other people I know - even those who, like me, are broadly speaking pro-intellectual property.

Let's look at a few things that are going on.

Culture war on the "streets"

First, there's a whole "culture war" (to borrow Dan Hunter's phrase) going on out in the real world over the morality and legality of dealings with copyright material. In reality, there is an amazingly deep, and growing disconnect between what IP law says, and what people think it says. I reckon people out there in the "real" world must be pretty confused. Because all they're getting is mixed messages. On the one hand, you have movie piracy trailers which are, in my view very deceptively, threatening people with the direst criminal consequences for any kind of downloading. On the other hand, we have iPods being sold in Australia.

As I understand it, there are two ways you can fill an iPod’s memory with music. First, you can be American – or at least have an American passport - and then you can then sign up for Apple’s “iTunes” service and purchase legal downloads of music. Or, you can fill it up with mp3 files. These could be ripped from your personal CD collection – or it could be downloaded from the Internet. The memory on an iPod, by the way, is pretty big - 10,000 songs or something like it can fit on that memory. To fill it from your own purchased CD collection: well, you would have to have a very significant CD collection. To be brutally honest: a lot of iPod use involves copyright infringement. Just how much depends on whether you think some personal copying might be allowed under some kind of implied license. But there is a lot of copyright infringement here, methinks. Let me assure you, from personal experience, that explaining this to journalists, however, tends to engender a reaction of disbelief, followed by hilarity. The reality on the street is that just selling iPods in Australia suggest to people that some personal copying is OK.

What are people out there to make of these mixed messages? Copying is evil but copying is ok? How are we meant to reconcile all that? And how are we meant to reconcile that with our longstanding assumed freedoms to make some copies for personal use? As Senator Peter Cook put it when he discovered he was infringing copyright every time he recorded a program:

“You have now given me a huge guilt burden. I am in breach, I am a serial offender, and I am only let off by virtue of the fact that the damages are infinitesimal and it is probably not worth the owner of the copyright pursuing me.”

I suspect there's a few people out there who might be saying something similar.


Deceptive expansion of the law

We've also, recently, had some fairly significant expansions to copyright law as a result of the FTA. The Free Trade Agreement with the United States makes some very significant changes to digital copyright law in Australia. The changes are, broadly speaking, all one way: they make digital copyright law stronger, and they expand the potential circle of defendants to larger numbers of people.

Now, the consistent line from government, in describing the IP Chapter of the FTA, was that:

• The FTA obligations, where they strengthen copyright, are only meant to target bad actors – pirates, not ordinary people;
• The FTA will not prevent consumers making legitimate use of copyright materials, lawfully acquired;
• Government policy is that “the copyright law should not unduly intrude into the private sphere" (this is repeated some 14 times in the Explanatory Memorandum).

So that's the political line, and that is the argument that was given to bodies like the Senate Select Committee. But it is just not borne out by the FTA Act, as it was eventually passed.

To give just a few examples:

First, in relation to the anti-circumvention provisions, within two years, we will have to:

• Broaden the definition of a “technological protection measure” protected by the law;
• Make it illegal to circumvent a TPM – not just to distribute the tools for circumvention;
• Narrow our exceptions: it is not at all clear how much we will be able to retain of our “qualified persons” and library exceptions that currently exist.

As a result of these changes, all sorts of people become infringers of the Copyright Act who weren’t before. It is just as much an infringement to mod-chip your DVD player, just to play your region 1 DVDs you bought in the US, as it is to distribute the mod chips.

Second, we have a new criminal offence, which could capture all kinds of technology providers at least on the face of the very broadly drafted provision.

Third, we have an expansion of the kinds of copies captured by copyright law. While the details are technical, one key result is that playing unauthorized copies of copyright work, even for non-commercial uses in the home, will in at least some cases be a copyright infringement. So, if you happen to wander down to the market, and purchase a pirated movie, and put it in our DVD player – then, depending on what’s going on inside, you will be a copyright infringer. You weren't before. But you might be now.

So, while the line has been that copyright was to stay away from the private sphere, and not intrude too much into the ordinary lives of ordinary people, and would only target bad actors, some of the changes have exactly the opposite effect.

Law suits against the new technologies

In the next 6 months or so, we have some very important cases going down in digital copyright law. We have a law suit against Kazaa, set down for hearing in November. This case may well decide some of the really key questions in the relationship between copyright and technology: in particular, it is going to decide whether technology providers are liable when their technology can be used for infringing purposes. We will learn whether providers of peer to peer software can be forced by copyright owners in Australia to shut down or change their technology. We will find out the extent to which copyright owners are to have veto rights over technology.

Overreaching claims

The other thing that disturbs me is the extent of overreaching claims made by some IP owners. I suspect, although I cannot prove, that this is happening all the time behind the scenes: big companies threatening individuals or small companies for alleged infringement of alleged IP rights even on a weak case. I hear stories from lawyers that this does happen, and that, when you're small, some times you just have to fold and settle because you can't afford to fight the case in court.

Rarely do we see overreaching claims being publicised, but this story - although based it seems on mistake - is a ominous foreshadowing of something we are likely to see more of in Australia.


Copyright gets a bad name for itself?

Jane Ginsburg, over in the US, a few years ago wrote an article, "How Copyright Got a Bad Name For Itself". In that article she pointed out:

"...copyright is in bad odor these days. Many of the developments over the last years designed to protect copyright have drawn academic scorn, and intolerance even from the popular press. I have a theory about how copyright got a bad name for itself, and I can summarize it in one word: Greed."

I think we are now seeing the same problem here in Australia. We are seeing a greed issue. We are seeing claims by the Copyright Council that copyright owners should receive some remuneration for the convenience people get when they tape a program to watch later. That's just straight out greed. Such things have not been remunerated in the past and just because they could be, doesn't mean they now should be.We have copyright owners claiming there is no need for some of the user exceptions in the copyright act, or denying that any kind of new exceptions need to be introduced when the law is strengthened. Again, it's greed. There have always been exceptions and we will continue to need exceptions to infringement, for the sake of creativity.

Greed is not the only problem however. There are two others:

• Fudging: putting out propaganda like that in the current movie piracy trailer, mentioned above, while at the same time making available all sorts of technologies for more copying like the iPod, fudges the law: it leaves the status of certain fairly ordinary acts unclear;
• Tarring: tarring everyone with the same brush - calling the downloader a criminal as well as the uploader or the mass copier; calling the person who plays a pirate DVD an infringer as well as the person who sells it - tars everyone with the copyright infringer's brush.

Greed, fudging and tarring give copyright a bad name. They put copyright owners and copyright owners' claims an increasing distance from the real world and what consumers want in the real world. That just can't be good for the law, and it can't, in the long term, be good for copyright owners. I think getting a bad name is a bad thing, too:

• It loses you friends. And copyright needs its friends right now, because it is facing some real challenges;
• It makes it harder for people to make the important moral distinctions. I think a lot of people genuinely do think that, morally, too much copying, or copying from complete strangers, is a morally dubious act. But if you say that everything is an infringement - that home taping is an infringement; that format shifting is an infringement - then you might incline people to take the attitude of – in for a penny, in for a pound. If I’m condemned for all copying, I may as well do more, rather than less;
• it provides really easy fodder for opponents and challengers to copyright owners. Take, for example, the hearings in the Senate Select Committee. Early on, someone told Senator Peter Cook, the Chair of that Committee, that every time he taped a movie or a mini-series from the television he was infringing copyright. He became – shall we say, somewhat fixated by this issue. I think one of the reasons we have so many pro-user recommendations coming out of JSCOT and the Senate Select Committee; the reason that things like fair use as a possible defence are getting a go at the moment is because of things like Senator Cook’s guilt burden, which I quoted above.

Consider, for a moment, what might happen if Kazaa is found liable here in Australia. Remember, that Kazaa-type technology has been found not to infringe copyright in Australia, by the 9th Circuit, quite recently.

Now let's imagine, for the sake of argument, that Kazaa is found liable for authorising infringement of copyright in Australia. Will this be good for copyright owners and copyright law in Australia? I suspect not.


First, it will be bad for innovation in Australia if technology creators, like software writers, have to get permission from copyright owners before they do anything to develop new technologies. That's an obvious point.



Second, from a political perspective, it is not going to look good if Australian copyright law is more protective of copyright than the United States. Innovative technology allowed in the US but not in Australia? Concerns about Australian law being stronger than the US were at the forefront of the Senate Select Committee's concerns when they discussed Chapter 17 of the FTA. More protective law in Australia is simply not good from a balance of trade perspective: Australia as a copyright importer shoots itself in the foot if it has law which is more protective than the world standard. If Australian law looks more protective, this could, potentially, galvanise some legislative action to redress that balance. It will certainly give momentum to those who are pushing for such legislative action. As someone who thinks that steps need to be taken to redress the balance, of course, I think this could be a very good thing. Maybe we need obvious disaster to strike before anyone will do anything about our archaic fair dealing defences and the issues pointed out that arise from the FTA Act. It's a real shame if we have to do things that way.

I wish I didn't have to be this negative. But in the last two days I've had conversations with three different people, all calling me entirely independently, who have been saying, broadly, the same sort of stuff that I'm saying here. I was struck by the extent to which I heard some of the same sentiments even amongst the IP lawyers who were at the IPSANZ conference on 10-12 September (with some notable exceptions, of course).

While we may not have quite the same public commentariat saying these things as they have in the States - we don't have a Lessig; we don't have a Jessica Litman - while historically our IP academe has been pretty pragmatic and black letter and all of those things, I'm increasingly getting the feeling that there's quite a few people out there - lawyers, academics, interested people - who are getting fed up with the way that copyright law and copyright rhetoric are going. And I don't think this bodes well for copyright law or copyright owners.

 
Open Source Policies all around the world...

The Center for Strategic and International Studies, based at DC, has been doing a rather interesting study of government policies on open source software. I'll quote an email sent to Politech subscribers:

"...just put together a rather large chart providing information on the number and type of Open Source (OS) software policies and legislation considered by national, regional or local governments around the world. It looks at whether the policy or legislation mandated the use of OS, expressed a preference for OS software, encouraged its use or commissioned research into OS software. We have not included purchasing decisions (i.e. a government decided to buy OS products). While a purchase of OS software could indicate a policy decision that has not been publicly articulated, it could also be simply a decision made on the basis of price or product."

The chart is available here (pdf). They're welcoming feedback - go to their website.

 
The ALRC Gene Patenting Report has been released.

It is available here.
The recommendations are here.
The recommendations include the creation of a research exception in patent law.
The recommendations also include some interesting stuff on copyright law:

• 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
• The Commonwealth should amend the Copyright Act to provide 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
• Prior to the implementation of art 17.4.7 of the Australia–United States Free Trade Agreement—which includes a prohibition on the circumvention of access control measures—the Australian Government should assess the need for an exception for researchers engaging in fair dealing for the purpose of research or study in relation to databases protected by copyright. Once the prohibition has been implemented, the Australian Government should periodically review the impact of the anti-circumvention provisions on the practical exercise of fair dealing for the purpose of research or study in copyright works

 
Skylink Decision is out. Get it here.

Ah, Skylink (The Chamberlain Group, Inc., v. Skylink Technologies, Inc. (beware - word document). This is a decision of the Court of Appeals for the Federal Circuit in the US. The case? The notorious "garage door opener" case which has attracted such attention whenever people talk about the "anti-circumvention laws".

Let's backtrack for a moment. For those who came in late, "anti-circumvention laws" are the laws we have which make it illegal to "unlock" digitally locked copyright material. They are the laws that make it illegal to sell a chip to modify a DVD player to play non-region or pirate DVDs; the laws that make it illegal to distribute deCSS which decrypts DVDs. In the US, such laws make it illegal to break the encryption on a DVD so that you can copy and distribute it. Etc.

There's been debate about anti-circumvention laws in Australia in particular, because as a result of the FTA, Australian law will move from a fairly minimalist regime that regulates circumvention devices without completely banning them, to a more restrictive scheme based on the notorious DMCA - the US law in this area. For more - oh, so much more - on these questions, you should look at various submissions to the Senate Select Commmittee on the FTA. I recommend the submissions of the Australian Consumers Association in particular on these issues. I also look at these issues in my submission and supplementary submission. See also Rusty's material on this - his litmus tests for what a law should look like are really useful.

Back to Skylink. Skylink is the notorious case (I'm using that word a lot) where a company attempted to use the DMCA to prevent another company coming along and making substitute (cheaper) replacement garage door openers for people who lost their garage door opener. The case is described in EFF's paper, "Unintended Consequences": to quote:

Garage door opener manufacturer Chamberlain Group invoked the DMCA against competitor Skylink Technologies after several major U.S. retailers dropped Chamberlain’s remote openers in favor of the less expensive Skylink universal “clickers”. Chamberlain claimed that Skylink’s interoperable clicker violates the DMCA by bypassing an “authentication regime” between the Chamberlain remote opener and the mounted garage door receiver unit.
Skylink reverse engineered the algorithm used by the garage door receiver’s computer program. Skylink’s transmitter sends three static codes which trigger a resynchronization function and open the garage door. Even though the Skylink clicker does not use the “rolling code” sent by the Chamberlain transmitter, Chamberlain claims that it “bypasses” its “authentication routine” to use the computer program that controls the door’s motor. On this view, a consumer who replaced his lost or damaged Chamberlain clicker with one of Skylink’s cheaper universal clickers would not be allowed to “access” his own garage. The same argument would apply equally to ban universal remote controls for televisions.

The District Court rejected Chamberlain's arguments. Now, the Court of Appeals for the Federal Circuit has affirmed.

While I've not yet analysed the decision in any detail, there is some really, really interesting language here - particularly interesting and relevant to our interpretation and implementation of the FTA (which will be happening over the next two years or so) - particularly as it relates to situations where a device allows consumers to "access" copyright works (without infringing).

One of the big concerns in the FTA hearings here in Australia has been whether the anti-circumvention provisions were going to require Australia to enforce attempts by copyright owners to limit uses of/access to legitimately purchased works, because Article 17.4.7 requires us to protect "access controls" as well as technological locks that prevent copying. There has been concern, for example, that the new laws would require Australia to enforce access controls which are unrelated to copyright infringement. There has been concern we would have to enforce all kinds of things like region-coding, and no-fly zones.

The government has affirmed, again and again, that we are NOT required to limit genuine non-infringing use of legitimate copyright works.

There's some language in this decision which could support these arguments. In short, on a quick reading, it looks like the court is saying that devices which allow "access" but no copyright infringement are ok under the DMCA. See, for example, this passage from the judgment:

“Were § 1201(a) to allow copyright owners to use technological measures to block all access to their copyrighted works, it would effectively create two distinct copyright regimes. In the first regime, the owners of a typical work protected by copyright would possess only the rights enumerated in 17 U.S.C. § 106, subject to the additions, exceptions, and limitations outlined throughout the rest of the Copyright Act—notably but not solely the fair use provisions of § 107. Owners who feel that technology has put those rights at risk, and who incorporate technological measures to protect those rights from technological encroachment, gain the additional ability to hold traffickers in circumvention devices liable under § 1201(b) for putting their rights back at risk by enabling circumventors who use these devices to infringe. Under the second regime that Chamberlain’s proposed construction implies, the owners of a work protected by both copyright and a technological measure that effectively controls access to that work per § 1201(a) would possess unlimited rights to hold circumventors liable under § 1201(a) merely for accessing that work, even if that access enabled only rights that the Copyright Act grants to the public. This second implied regime would be problematic for a number of reasons. First, as the Supreme Court recently explained, “Congress’ exercise of its Copyright Clause authority must be rational.” …Chamberlain’s proposed construction of § 1201(a) implies that in enacting the DMCA, Congress attempted to “give the public appropriate access” to copyrighted works by allowing copyright owners to deny all access to the public. Even under the substantial deference due Congress, such a redefinition borders on the irrational.”

And this one too:

“Copyright law itself authorizes the public to make certain uses of copyrighted materials. Consumers who purchase a product containing a copy of embedded software have the inherent legal right to use that copy of the software. What the law authorizes, Chamberlain cannot revoke.Chamberlain’s proposed severance of “access” from “protection” is entirely inconsistent with the context defined by the total statutory structure of the Copyright Act, other simultaneously enacted provisions of the DMCA, and clear Congressional intent. … It “would lead to a result so bizarre that Congress could not have intended it.” … The statutory structure and the legislative history both make it clear that the DMCA granted copyright holders additional legal protections, but neither rescinded the basic bargain granting the public noninfringing and fair uses of copyrighted materials, § 1201(c), nor prohibited various beneficial uses of circumvention technology, such as those exempted under §§ 1201(d),(f),(g),(j).”

Looking good. Note, however, an interesting little footnote to the first paragraph of this last extract. That footnote says:

"It is not clear whether a consumer who circumvents a technological measure controlling access to a copyrighted work in a manner that enables uses permitted under the Copyright Act but prohibited by contract can be subject to liability under the DMCA. Because Chamberlain did not attempt to limit its customers’ use of its product by contract, however, we do not reach this issue."

In other words, it is not clear whether copyright owners could use contract to ban fair uses. On this issue, we've already had one proposal from the CLRC to ban contracts that try to do that, and the Labor members of the Senate Select Committee supported this idea (recommendation 11).

All of this, I would think, will be feeding into our deliberations about how to draft the anti-circumvention provisions. Bring on the debate!

 
Interception of emails

Is an unopened email:

1. More like a telephone call, which should require an interception warrant before it can be opened and read; or
2. More like a document or other physical thing, which requires only an ordinary search warrant?

Looks like the answer, which was (1), will now be (2), according to this story.

 
Open content - make the science papers available!!!

This story on a call by 25 Nobel Prize Winning Scientists to make papers of all tax-payer-funded research freely available. Basic complaint: universities and taxpayers pay for researchers to research, write, and edit papers, and journal publishers reap the benefits with very high subscription fees to those journals. Publishers' response: these things are still expensive.

Interesting debate.

 
Movie Piracy Trailer

It's interesting. Last night, I watched online the "movie piracy" trailer that has been showing in a lot of cinemas here lately. It's available online here. I saw it a couple of weeks ago, and remember that my overall impression from the advertisement was that "downloading is a crime".

And I'm a copyright person, so I was thinking to myself - well, that's not right, is it? Downloading is not a crime under current Australian copyright law - although uploading and making it available generally via the Internet could be (s.132(2) - offence to distribute "for any other [non-commercial] purpose to an extent that affects prejudicially the owner of the copyright an article that the person knows, or ought reasonably to know, to be an infringing copy of the work.)

So I watched the advertisement, to get the script. And here it is:

You wouldn’t steal a car.
You wouldn’t steal a handbag
You wouldn’t steal a television
You wouldn’t steal a movie
Downloading pirated movies is stealing.
Stealing is against the law.
Don’t buy into it: Movie Piracy: it’s a crime.
Report it."

Interesting, isn't it? It seems to be carefully written not to say that downloading is a crime. Movie piracy is a crime - but piracy is undefined - it's not clear whether piracy is the downloading or some other prior act. It's suggested that the movie piracy occurs before the downloading. But on a "once only" viewing, the concepts all get elided and the basic message is - downloading is a crime. I just thought that was interesting as a script and as a piece of rhetoric. Of course, under the FTA Bill, the downloading stuff may well become a crime...

Update: David Starkoff got there first.

 
The "Don't Induce" Act...

For those who came in late, there's a bit of a brou-ha-ha over in the US at the moment over a rather nasty-looking proposal to amend copyright law - known as the INDUCE Act. The INDUCE Act has been exhaustively discussed by bloggers; here's a collection of Ernie Miller's writings on the issue.

The idea of the INDUCE Act is that it would make infringers of anyone who "intentionally induces" any infringement of copyright, where "intentionally induces" is defined to mean

"intentionally aids, abets, induces, or procures, and intent may be shown by acts from which a reasonable person would find intent to induce infringement based upon all relevant information about such acts then reasonably available to the actor, including whether the activity relies on infringement for its commercial viability."

The proposal has had all sorts of people up in arms, basically because it looks like it could capture all kinds of technology providers. EFF famously mocked up a complaint against Apple iPod for inducing infringements of copyright. In other words, the proposal targets technology, and potentially targets all kinds of legal technology. Even the New York Times got into the critics corner on this one, saying in an editorial that:

"...the bill is so loosely worded that it could threaten a host of legal information-sharing practices and technologies. That includes everything from the iPod to automatic online translation. Critics claim, with reason, that this overreaching bill would have deeply chilling effects on technological innovation."

All that is a long prelude to the latest development - the "Don't Induce" Act.

According to CNet News and to Ernie Miller, the "Don't Induce" Act (a.k.a. The Discouraging Online Networked Trafficking Inducement Act of 2004), is an alternative being supported by the Consumer Electonics Assoc., Public Knowledge, Home Recording Rights Coalition, DigitalConsumer.org, Computers & Communications Industry Assoc., and the American Libray Assoc.

The proposal is more narrowly targeted at the people the INDUCE Act was supposed to catch: those who "actively distribute in commerce a computer program that is specifically designed for use by individuals to engage in the indiscriminate, mass infringing distribution to the public of copies or phonorecords of copyrighted works over digital networks, with the specific and actual intent to reap financial gain by encouraging such individuals to engage in such indiscriminate, mass infringing distribution". There would be no "specific and actual intent" unless:

1. the predominant use of the computer program is the mass, indiscriminate infringing redistribution to the public of copies or phonorecords of copyrighted works;
2. the commercial viability of the computer program depends on, and the predominant revenues derived by the distributor from the computer program are derived from, its use for such mass, indiscriminate infringing redistribution
3. the person has undertaken conscious, recurring, persistent, and deliberate acts that encouraged another person to commit such mass, indiscriminate infringing redistribution or absent a legitimate purpose actively interfered with the ability of copyright owners to detect and prosecute such mass, indiscriminate infringing redistribution

And the Australian angle on all this? Well, perhaps our legislative drafters should take some lessons from the people who wrote this law - on how to draft a law so that on the face of the legislation itself, it actually captures only the bad actors which you say you want to target.

Maybe then we would not end up with outrageously broad and uncertain criminal provisions like the one inserted by the FTA Implementation Act in the form of the new s.132(5DB), on which I've previously blogged.

 
Fair use vs Fair dealing debate - from the other side of the Atlantic

How's this for interesting. Judge Posner, over at Lessig blog, on the problems with the fair use doctrine:

"Here is a very worrisome problem concerning fair use. It has to do with a dichotomy long noted by legal thinkers between the law on the books and the law in action. They often diverge. And fair use is an example of this divergence. As I said in an earlier posting, fair use often benefits rather than harms the copyright holder. However, it doesn’t always; moreover, even if a copyright holder is not going to lose, and is even going to gain, sales from a degree of unlicensed copying, if he thinks he can extract a license fee, he’ll want to claim that the copying is not fair use; and finally, because the doctrine has vague contours, copyright owners are inclined to interpret it very narrowly, lest it expand by increments.

The result is a systematic overclaiming of copyright, resulting in a misunderstanding of copyright’s breadth. ...
...

The underlying problems are two: the asymmetry in stakes in disputes between owners of valuable copyrights and people who are either public domain publishers or don’t anticipate that the works they’re creating will have great commercial value; and the vagueness of the fair-use docrine. I have suggested that this vagueness can be reduced by a categorical approach, under which types of use are given essentially blanket protection from claims of copyright infringement."

So Posner J suggests that the categorical approach might be worth thinking about. Shades of fair dealing, perhaps?

I would suggest, however, that if Posner J were to outline a possible set of categories for blanket exemption, he would not pick the set we have here in Australia. Our current set of defences obviously has some gaps in it. It is those gaps I'd like to see filled with some more categorical defences to infringement. Transformative use, perhaps. Orphan works. Home taping, if you must. Let's pick some real problems. In my ideal world there would be a back up defence in addition to such categories - doing what Cornish suggested (Intellectual Property Rights: Omnipresent, Distracting, Irrelevant? at page 65) - "giving judges some more general power to excuse at the edges". (note: other ideas on specified categories of defences we need in Australian law happily received... write me k.weatherall AT unimelb dot edu dot au.)

 
Breaking News: ADA and ALCC Joint Submission on Fair Use

The Australian Digital Alliance and the Australian Libraries Copyright Committee have issued a joint submission to Senator Helen Coonan (Minister for Communications, Information Technology and the Arts) and to Philip Ruddock (Attorney-General), seeking urgent action on the recommendations of JSCOT and the Senate Select Committee (as well as, way back when, the CLRC) to adopt a more general defence to copyright infringement into Australian law, along the lines existing in the US, where "fair use" is a defence, in light of the adoption of the Free Trade Agreement.

The media release is here. The submission is available here.

Since rumour has it that AGs are not keen on any such move (rumour reflected in the constant references to 'Australian exceptions' in the Senate Select Committee, as noted in my post below), it will be interesting to see whether this gets any response.

Personally, I think that even if fair use is not something that we want, the government cannot avoid the need to deal with the other part of the recommendations of JSCOT and the Senate Select Committee. Both committees did not just talk about fair use. Both talked about the need to deal with certain anomalies in our existing law, and certain problems and costs arising from copyright term extension. Fair use would be one way to try to deal with some of these issues. But there is also another way open - to try to draft more specific defences that do deal with the anomalies. I've dealt with one of these issues below, in my comment on Posner's proposal to deal with orphan works created by copyright term extension.

 
See, copyright just gets everywhere, doesn't it!

Here, another story about the unseen ways that Australian copyright law regulates your television viewing experience. It's a SMH story about why it is that, 4 years after they were introduced in the US, Personal Video Recorders (PVRs) have still not made it into Australia in a significant, mainstream kind of way (yes, they're around in a non-mainstream kind of way, but I digress). PVRs are things like TiVo - video recorders that can search for programs and tape them, and, importantly, many can tape automatically skipping the ads.

To work, PVRs need electronic program guides. But here copyright law steps in. The TV networks control who gets program guides in Australia because the courts here apply a different copyright law to that in America. A seminal case, called Telstra vs Desktop Marketing, in which Telstra prevented that company re-using the White Pages, has resulted in copyright in Australia applying to raw data. And the TV Networks don't really like the idea of PVRs because they have implications for ad revenue.

According to the story, PVRs are on the way in. watch this space.

 
On the Tragedy of Software Patents

Rusty has posted this story of the tragedy of the anticommons, as caused by Software Patents. The "tragedy of the anticommons" arises, according to academics like Heller and Eisenberg, when "multiple owners are each endowed with the right to exclude others from a scarce resource, and no one has an effective privilege of use. When too many owners hold such rights of exclusion, the resource is prone to underuse". The tragedy of the anticommons is usually raised as a potential problem with patents on gene technology.

Rusty gives us another example in the context of software patents. He tells the tale of a wonderful technology, with the potential to massively increase the efficiency of internet communications - prevented by a patent which is not even being exploited. Essential reading for anyone interested in the software patents debate. On this same issue, see the recent newspaper stories by Ross Gittins: here and here.

 
Richard Posner fixes the problems caused in Australia by the FTA

Richard Posner is guest blogging over at Larry Lessig's Blog at the mo. For those of you who don't know Posner, he's a Judge on the US Court of Appeals for the Seventh Circuit, a Professor of Law at the University of Chicago and one of the leading lights in the Law side of the Law and Economics Movement, having written one of the best known texts as well as a whole lot else. And more recently, he's been writing up a veritable perfect storm of material on the law and economics of IP, culminating in a book published last year called the Economic Structure of Intellectual Property Law.

And Posner has some interesting things to say about copyright term extension in particular. As I and others pointed out in the context of the FTA, Posner points out that the real problem with copyright term extension is not the licensing fees that will have to be paid because of uses of old works - although these can be significant in some, limited cases. No, Posner points out:

"As Lessig’s brief in the Supreme Court pointed out, the problem for people like Eldred who want to publish old works (works that would have entered the public domain by now were it not for the Act) is transaction costs, not license fees: the costs of locating and negotiating with the current copyright owner. Those costs may well exceed the modest commercial returns from publishing a public domain work (which anyone can copy). The beauty of the old (pre-1976) copyright system, with its requirement of renewal beyond a shortish initial term (like 28 years), was that most copyrights, lacking commercial value by the end of their initial term, were not renewed, and so fell into the public domain, and so licensing costs fell to zero."

Ah, but Posner points out - there is an easy solution, in the form of an interpretation of fair use:

"Bill Patry, a distinguished copyright lawyer and treatise writer, and I have written an article soon to be published in the California Law Review in which we advocate an interpretation of “fair use” that would solve the major problem that extending the copyright term creates. We argue that it should be considered fair use to copy an old work if the copyright owner hasn’t taken reasonable steps to provide notice of his continued rights, as by entering his name and address in a copyright registry. Given such a rule, such registries (which have counterparts in the case of works of visual art) would spring up overnight. Then if an Eldred wanted to publish some old work, he would consult the registry or registries and if no owner was listed (which would usually be the case, because most old works have no commercial value and so their owners won’t bother to try to keep them from falling into the public domain), he could publish it without a license."

The Labor Senators in the Senate Select Committee on the Free Trade Agreement were worried about this particular problem, and addressed it in their recommendation number 10 (pdf):

"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. "

Posner's idea of providing an affirmative defence of fair use in the case of works not registered is not dissimilar, by the way, to Lessig's Proposal for a Public Domain Enhancement Bill. The Public Domain Enhancement Bill would require copyright owners to register their copyright after the "life plus 50" term for some nominal fee - thus ensuring that copyright only continued to apply to particularly valuable works. One of the criticisms of that approach is that it puts the onus on copyright owners to register - and some may not register, only to find that they have lost valuable rights at some later stage, particularly if they are not well versed in copyright law. Posner's approach (as I understand it, without reading the Posner/Patry article) fixes this problem by providing a defence of fair use which, presumably, would not continue to apply if the copyright owner later decided to assert their rights (having discovered that they did not register) - subject, presumably, to some 'change of position' rights on the part of the user who is making fair use relying on non-registration.

JSCOT, too, made a similar recommendation (pdf) which is even closer, if anything, to what Posner is talking about - their Recommendation 17 was stated thus:

"The Committee recommends that the changes being made in respect of the Copyright Act 1968 replace the Australian doctrine of fair dealing with 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."

The beauty of something like what Posner is proposing is that it could fix many of the problems raised by copyright term extension - and the big problem of orphaned/unexploited works which is of such concern both to JSCOT and to the Senate Select Committee - in a way that would be entirely consistent with the general approach to copyright defences under Australian law.

Government officials - and copyright owners - throughout the Free Trade Agreement debate consistently said that we might not want to adopt the "US way" of doing things - but rather we might instead want to craft Australian exceptions for Australian circumstances. Toni Harmer, in the Senate Select Committee (on 18 May) said this:

"Rather than putting in place the US exceptions and the way that the US do things, which I think some stakeholders have suggested might be a good idea, the preferable approach, and the one that we have negotiated in the chapter, is to put in place a list of objective standards that we meet when putting in place exceptions so that we can craft those exceptions to be appropriate to Australia. As you said earlier, what may be appropriate in the US market may not be appropriate in the Australian market and we may need to have different exceptions to balance the interests of our consumers and users."

It has been repeatedly argued that fair use would not be a good thing because it is too uncertain. I argued in a submission to the Senate Select Committee that one way to reduce the 'bad effects' of the copyright term extension would perhaps be to adopt fair use, which might cover some uses of older works. Posner's suggestion is along these lines - a kind of fair use, but it seems, more specified to deal specifically with the orphaned works problem. It would protect users who wanted to republish older, unloved works - while allowing copyright owners to continue to exploit the few valuable older works in their collection. AGs and DCITA should be looking at this idea very, very seriously, in my view.