December 2006

Various reactions to the linking is authorisation’ Cooper decision handed down yesterday by the Full Federal Court:

  1. I commented yesterday (summary? ‘troubling’. ‘Have we, or have we not just had a very extended debate about copyright law in Australia? Was not one of the memes in that debate the idea that copyright ought to ‘work’ in a digital environment? Are not search engines, and links, fundamental to the way the Internet and digital environment work? Did all this debate completely pass the members of the court by?’)
  2. Techdirt have commented (‘the idea that it’s the technology creator’s job to build in protections against infringement in how they design a tool is also extremely problematic in placing the burden on the technology makers. It’s a guaranteed recipe for slowing down innovation by putting in place both chilling effects against innovation and additional development costs’)
  3. Boing Boing comments here (‘If that precedent were adopted worldwide, there would be no Google, no Wikipedia, no internet as we know it’)
  4. Black comments here (‘I agree with Kim’)
  5. The Age has the story here.

As you can see, the tenor of this commentary is – ‘shock horror Australian law says linking is infringement; Google’s in trouble’.

Take a deep breath. It’s important to appreciate the limitations of this decision. (more…)

As I anticipated on Friday, and noted earlier today: the Full Federal Court judgment in the Cooper case has been handed down. This is a significant, appeal judgment on the scope of secondary liability in copyright law: that is, when can one person be responsible for the infringing activities of another?

In this case, the Full Federal Court had to consider whether a website, structured and designed both to provide links to infringing MP3 files, and to provide facilities for the easy, automatic upload of such links, could lead to liability for authorising infringement of copyright for the website designer (Cooper), and the hosting ISP (E-Talk) (the website itself, now down, can still be seen (though not used) via the Internet Archive Way Back Machine (the URL was To be completely clear, Cooper was not hosting infringing mp3s. But his website did provide easy access and a central point for placing links.

At first instance, Tamberlin J held both liable – leading to much commentary, particularly on the breadth of the Australian concept of authorisation. If you’re interested in where Australian law on secondary liability for copyright infringement lay prior to this judgment, and how it compares to US concepts, have a read of this article by copyright leading lights Sam Ricketson (australia) and Jane Ginsburg (US).

Summary: in this judgment, the Full Federal Court has pretty much affirmed the reasoning of the Trial Judge. Overall, I find the reasoning pretty troubling in this case: particularly the reasoning of Branson J, which seems to me to endorse a broader view of appropriate liability than the other judgment of Kenny J. I think the judgment shows three things:

  1. That Australian law is out on its own in terms of potential liability for authorisation of copyright infringement. The law is certainly broader – that is, the scope of activities that will potentially lead to liability is wider – than equivalent concepts in the UK (as illustrated in cases like the Amstrad case) or Canada (as illustrated by cases like CCH). And, as Ricketson and Ginsburg point out, it is broader, even, than US law post-Grokster. Anything that would be caught by post-Grokster inducement liability would also be caught by Australian authorisation liability – and then some.
  2. More broadly, the case illustrates that Australian copyright law is increasingly becoming a strange, independent beast. The judgments in this case are truly remarkable for their lack of reference to, or engagement with, recent overseas authority or legal developments. Just remarkable.
  3. Most remarkably to anyone outside that arcane society of the High Priests and Initiates of Copyright: linking to another website that carries an infringing file does carry some legal risk under the reasoning in this case.

Over the fold, I have some more detail. But let me give you a flavour of what I think. As I read the judgment, quite honestly, I was amazed by the absence of any explicit conscious engagement with the real world. To read this judgment – as I said, particularly the broader one of Branson J – you could be forgive for wondering how much the honourable members of the court actually use the Internet. It’s not way the law is described, it is the fact that the judgments can make comments about the potential liability of a website operator for copyright infringement for the most mundane acts – like, oh – linking to another website – without any acknowledgment that that might be an issue, or a problem, or an even slightly undesirable development in the law. (more…)

Judgments (2 of them) are here.
Helpdesk employee wins; Cooper and the ISP lose.
More when I’ve read it.
Hat tip: Starkoff again, naturally.

Judgment by the Full Federal Court is due in the Cooper litigation (first instance judgment here; commentary here, here, here, here) on Monday.  Cooper deals with issues of authorisation of copyright infringement by an ISP, and by a website that linked to infringing MP3 files.

It’s a biggie, in Australian copyright law terms.  When, exactly, does one ‘authorise’ copyright infringement online?  How current is Moorhouse now?  What do all those Digital Agenda Act provisions really mean?  Plus some cross-jurisdictional issues thrown in for fun… and unlike the Kazaa case, this one didn’t settle to the disappointment of IP academics all over the country.

What a lovely (!) Xmas prezzie from the Full Federal Court.

(hat tip for the alert: Starkoff)

[Note: the TPM part of this post has been updated, 15 December 2006]

So, let’s see:

  1. Australia has passed a copyright amendment bill, with lots of changes, particularly digital ones;
  2. The UK has the Gowers Review Report, newly released – with various proposed changes for consideration;
  3. Canada is still waiting, and … (wait for it, wait for it)
  4. Now New Zealand has its own Bill! (big pdf here, text version here)

Guess those Canadians drafting their Bill will be looking at all this with interest.

But let’s have a quick squiz at the new kid on the block, the Copyright (New Technologies and Performers’ Rights) Amendment Bill 2006 (New Zealand).

So what does it do?

Well, for an international audience, it does the WIPO Copyright Treaty and WIPO Performances and Phonograms Treaty – plus some stuff on exceptions reflecting the current debate over private copying. For an Australian audience, it basically does the Digital Agenda stuff, plus a bit of stuff from some of our more recent amendments.

My summary? This law is a really strange – make that bizarre – mix of weird expansions of rights (particularly, the extension of property rights to webcasters and perhaps beyond – well beyond what the Broadcasters’ Rights Treaty will do), exceptions that won’t work (look at the format-shifting and time-shifting exceptions) – and TPM laws that look much better than anything I’ve seen anywhere else in the world.

And what happens next? Well, as far as I can see, what happens next is that Submissions are due February (late), the Parliamentary Committee (I think, the Commerce Committee) reports in June. So radically unlike us, it seems, NZ like to have time to think.

Over the fold: more detail. (more…)

T’was the week before Christmas, and all through the land
Not a creature was copying: such actions were banned.

The iPods were placed in their cradles with care
In hopes that there soon would be music to share

Then up at the Big House in Canberra – what news!
I sprang to my keyboard, more law to peruse,

And what to my wondering eyes should appear,
A release from Phil Ruddock! Ah yes! Listen here!

A wink of his eye, and a twist of his head
Soon gave me to know I had naught more to dread,

I can take up my iPod, pull out that old scanner,
Buy a TiVo for Yule, use them all! Any manner!

For I heard Phil exclaim, (with much fine print, so small),
Copyright is reformed! Merry Xmas to all!

The Copyright Amendment Act received Royal Assent yesterday. The press release is here. Effective immediately: Schedule 6 (private copying, ³special case² exception, fair dealing, parody and satire, libraries); Schedule 7 (maker of communication); Schedule 8 (responses to Digital agenda Review: educational institutions); Schedules 10 and 11 (Copyright Tribunal). Effective from January: all those criminal bits and TPM bits. This Xmas present will give you a hangover.

Apple has launched iTunes and Online Apple Stores in New Zealand. Interestingly, songs are priced at NZ$1.79, which equates to A$1.56 at today’s rates. This compares with A$1.69 at the Australian iTunes store.

Similarly, music videos are NZ$3.59 (A$3.13) and most albums are NZ$17.99 (A$15.68), compared with A$3.39 and A$16.99 respectively. (Not all albums are as much on the Australian store; for example Boston’s self-titled first album is A$13.52)

Of course, these compare with US$0.99 (A$1.26), US $1.99 (A$2.52) and US$9.99 (A$12.68) respectively at the US store.

about fair use, space shifting/personal copying, the DMCA – can be found on Bill Patry’s blog here.

Well, the final report of the Gowers Review of Intellectual Property has been released. The 140+ page report can be downloaded from here.

This is a big deal for the UK – a wholesale review of the efficiency and effectiveness of the whole UK IP system – albeit it has been easy to ignore the goings on, while we struggle locally with what is now, officially, the Australian Copyright Amendment Act 2006 (Cth). Below, a brief background, some links to the UK commentary, and some thoughts on how the recommendations stack up against/compare to what we’ve seen in the just-completed round of Australian copyright and other IP amendments. (more…)

Attorney-General’s new enews on copyright has been published. It is available here. Helpfully, it notes that the Copyright Amendment Act 2006 will shortly be available on the ComLaw website and a consolidated version of the Copyright Act 1968 is likely to be available on ComLaw by the end of January 2007. Not much new there for followers of the process, except the comments on when the law is due to come into effect: (more…)

Slate has a piece on the use of Google’s Book Seach in detecting plagiarism. It is an interesting area, as it really represents technology removing another barrier to something that was previously relatively hard to do.

Previously, there were a number of barriers to detection of plagiarism. The scope of detection was limited by people’s access to the original books (hence the popularity of plagiarising material published overseas, or which was out of print for some time, or both), their ability to read them (ie to have the time to read it, and to translate the work if necessary), their recollection of what they had read, and the likelihood of finding and reading the infringing work. And in most cases, you would just get a feeling that something was amiss, rather than knowing straight away which portions had been copied and from where.

Now, it is a simple matter of setting a powerful computer loose on a massive database. (more…)

According to the Australia, Sir Cliff Richard is leading a push to have the period of copyright in the UK extended from 50 to 95 years. The reason? Some of his songs, such as “Move It” from 1958, are about to fall out of copyright.

As always, the underlying point not addressed is the rationale underlying copyright laws. Is it to allow perpetual quasi-ownership of something you have created? Is it to allow a reasonable reward by a limited monopoly of exploitation? And if so, for how long? And why should the time–presumably enough when the song was created if you are looking at it from an incentive point of view–be extended any further? The Disney/Sonny Bono Effect hits the UK…

It seems that the Copyright Amendment Bill passed the House of Reps at around 4:15pm today. Welcome to the new Australian copyright world. Presumably royal assent will occur sometime mid December, and it will all be fully in place soon. And here’s the government’s press release, and a ‘FAQ’ issued by the government on the Bill. According to the press release, we are ‘leading the way’ in copyright reform. So, um – where exactly are we going? There’s even a suggestion that ‘England, Canada, and New Zealand were all considering private use provisions and would look to Australia’s model, which balanced the rights of consumers and creators.’ Lord preserve them from too close a following….

But wait, said the guy with the BeDazzler – there’s more!

I happened to be prowling around the Bills Net site today, looking for something, and lo and behold, I found the amendments the government proposed to the Copyright Amendment Bill. And you know what? In addition to the 12 pages of amendments I’ve previously discussed (initially here, then in amended FAQs here), I find there’s another 3 pages – introduced on 30 November (the other set were dated 28 November). Hmmm……

Anyway, so there is more than I thought.

And what do they do? Well, in fact, they get rid of more of the strict liability offences. And they make a few other changes: to the timeshifting provisions, and some other things. Details over the fold. (more…)

You will find, after a period of seriously heavy blogging recently owing to the Australian Copyright Amendment Bill, this blog will be a lot less active in the next while.

I’m in Melbourne, but preparing for a permanent move to the University of Queensland, site of the excellent ACIPA research centre on IP in January, and in any event, the urgency has gone out of the whole blogging thing now that the Bill is more or less done and dusted. We are all a bit copyrighted and commented and submissioned and discussioned out.

But there’s a couple of interesting things going on: one in open access in Australia, one in copyright in Germany. More over the fold… (more…)