LawFont.com

Time for some Friday morning links, if you are in a reading mood today:

1. Michael Geist has a column this week on The Legal Limits of Government Tinkering with Technology. It discusses the French legislative proposals to mandate the interoperability of digital products: law which would require Apple to reveal technological specifications to its competitors so that they can design compatible devices, so that iTunes songs would play on anything. Australia makes a particular appearance in the column, with Geist commenting about the TPM Inquiry’s recommendation that the government establish the legal right to break region coding as part of Australia’s new anti-circumvention laws.
2. James Boyle has a column this week too, on documentary films and the clearance culture. A taste:

   This should be the Golden Age of documentary film, and in some senses it is. A profusion of television channels allows programs that cater to smaller and smaller markets. As viewers, we show an insatiable appetite for biographies of the famous – celebrity infomercials disguised as documentaries – but we also show a taste for quirkier material: … There are documentaries about mental illness and spelling bees and Star Trek fandom – though not all in the same film. And the drop in the price of cameras and editing software, together with the availability of internet distribution, potentially puts a million documentarians on the streets.

   But as Larry Lessig and others have pointed out, documentary film is rapidly becoming the latest victim of the explosion of intellectual property rights I have discussed in these pages. Ironically, the problem here is not a broadening of the rights themselves, but a “clearance culture” that demands licenses for the tiniest fragment of copyrighted material caught in the viewfinder or on the soundtrack of the documentary film.

   Boyle is writing from a US/international perspective. But similar issues were noted in Australia in a recent report for SADC, the Council for Documentary Makers (click here for the BIG pdf). The report, released in November 2005, noted that investors such as the FFC and AFC require a legal opinion that all material used in the documentary has been examined for violation of third party copyright and all necessary clearances obtained. Insurance premiums have also increased. It’s a shame that that same report didn’t look at doing what has been done in the US though – producing a ‘Best Practices’ Model for the Industry that reflects a consensus on what uses are and aren’t acceptable without a clearance. For the most part, the Best Practice Model produced by the Centre for Social Media is a very reasonable set of guidelines on when clearance should be obtained. Something similar could be created for Australia.

3. The other story doing the rounds of the blogosphere and media at the moment is the Philips Electronics patent application on technology that could let broadcasters freeze a channel during a commercial, so viewers wouldn’t be able to avoid it. See eg Techdirt. 4 brief comments on this:
   (a) oops bad publicity,
   (b) this is proof of one fundamental truth about intellectual property: that having a right doesn’t mean you have a marketable product. What, people are going to buy this? What, if people don’t want to buy it, governments are going to back the right of content owners to impose this technology on people? Even as they try (as our government is at the moment) to ensure that legitimate uses of legitimately accessed materials are preserved?
   (c) There is a move to parse out all the ‘consumer value’ in content and make it something that can be charged for. You can imagine paying ‘extra’ for the ‘right’ to channel surf. There are rights owners who think that is a legitimate method of doing business. Although see point (b) above.
   (d) Philips have apparently commented that they had no intention of using the technology in their products, but ‘Philips wanted to provide the technology and seek the patent only as part of the broader developments within the industry’. How many ways are there to say ‘patent arsenal’?
4. Remember that story about the chef from Interlude from a couple of weeks ago (you know – chef copies other chefs’ dishes). One of the issues I mentioned there was whether a dish at a top class restaurant could be a ‘work of artistic craftsmanship’. Well, have a look at this opinion piece in the Sydney Morning Herald today on the cake decorators of the Royal Easter Show. Does it change your mind on whether food creations can be works of artistic craftsmanship?