June 2008

Remember that IceTV judgment I talked about a few times? The one about copyright in TV program guides?

Two more items of information. In a comment on this blog, Peter Vogel points out that the court has now made orders in the case: IceTV is permanently restrained from reproducing in a material form Nine Program Time and Title Information, to the extent that such information reproduces the whole or a substantial part of the Nine Weekly Program Schedule. The whole order can be found here.

Second, I note that IceTV is still providing Channel Nine program guides, saying it is in compliance with the order (I wonder how, says Peter in his comment?). IceTV has also applied for special leave from the High Court to appeal from the Full Court judgment.

ACTA is a proposal for an ‘anti-counterfeiting’ agreement, being negotiated by a small number of mostly developed countries, outside any of the established institutions (WIPO, World Customs Organisation, WTO). While ostensibly dealing with counterfeiting (you know, of the evil exploding mobile phones and airplane parts kind), because it deals with IP enforcement it has the potential to balloon in scope and its implications for ordinary people (you know, those of us who are not evil-organised-crime-counterfeiters). Mission creep: ever the bane of IP treaty negotiations.

Anyway, there is some potential for concern about the negotiations, particularly if it starts (a) upping the enforcement for patents, (b) dealing with online enforcement beyond existing standards that we already have in Australia. If you are interested, some more sources have become available for further information on the Anti-Counterfeiting Trade Agreement negotiations:

  1. Susan Sell, US academic, has a paper which contextualises the ACTA negotiations available here (note: pdf file);
  2. I’ve put together a paper outlining what I could about what was known of the ACTA negotiations, and also highlighting some legal issues that might arise for countries like Australia; it’s available from my bepress site, here.

More info as it comes to hand.

As IPRoo notes, on 18 June 2008 the Federal Court (Weinberg J) handed down yet another decision in the recent spate of Australian copyright cases regarding copyright in the plans for project homes: Inform Designs and Construction Pty Ltd v Boutique Homes Melbourne Pty Ltd [2008] FCA 912. One can’t help but wonder whether there isn’t some kind of guerrilla war going on in the project homes industry at the moment, that war is being waged not only through prices, but through the indirect means of copyright litigation.

Anyway. The interesting thing about this case is that, unlike other recent cases, in this case the alleged infringer actually won – they were held not to have infringed.

The secret, it seems, is keeping drafts. Lots of them. In fact, if there is a ‘moral’ to the Inform v Boutique case, it is that: keep your drafts. This is because the secret to winning, if this case is any guide, seems to be convincing the court that despite whatever similarities might appear between your houses and your competitor’s houses, you did in fact come up with the designs independently. That may sound obvious, but actually, in these cases, it is not. (more…)

I’ve been following, in the blogs, the various comments, concerns, and (in some cases) downright scare-mongering about the proposed Anti-Counterfeiting Trade Agreement. I’ve been spurred to finally write something by this misleading, scare-mongering comment in the Sydney Morning Herald. For people wanting a more balanced view of what might be some of the problems, I recommend Bill Patry (Pt I, Pt II, Pt III); Michael Geist (particularly here) and this Ars Technica article. There’s an interesting article on IP Watch too.

I’m inclined to agree with Geist and Patry that the way these negotiations are being conducted is a long way from desirable. They are confined to a small number of ‘like-minded’ countries: initially including Canada, the European Union (with its 27 Member States), Japan, Korea, Mexico, New Zealand, and Switzerland; also including Australia after we decided to join in. Actually, that, in itself, would not be a problem really. There’s nothing to stop small groups of countries negotiating whatever standards and cooperation mechanisms they like as between themselves. No, the problem lies in two other aspects: the apparent secrecy of the negotiations (last time Australia negotiated an IP agreement in secret we ended up with all kinds of problems), and the use that no doubt will be made of the treaty once agreed. No doubt it will be offered on a ‘take it or leave it’ basis to other (less like-minded) countries – as a precondition of other things those countries want.

Funnily enough, it’s not just bad from a ‘we believe in democracy and transparent government’ perspective either. I’ve said it before, and I’m not the only one: it is this kind of thing that brings IP law generally into disrepute. It is such easy fodder for those who preach that copyright, or patent, or trade mark, deserve no respect. Media coverage of ‘secret negotiations’ in the mainstream news cement an increasing impression in consumers that such rights really have nothing to do with them. How can we tell people to respect intellectual property rights when the form those rights take cannot, on any view, be considered a ‘social compact’, democratically determined, or even a matter of national economic policy? Not to put too fine a point on it – why should we – as Australian consumers, or ordinary people worldwide – obey the IP dictates of countries like the US negotiated without our input or even knowledge? Seriously, no one could say that IP law doesn’t have an image problem. You would think, then, that those pushing for such rights would take some account of their PR problems.

The negotiations, and the documents, may be secret, but I have a feeling that we can piece together much of what the US, at least, would be putting on the table based on the ‘Discussion Paper’ published on Wikileaks and recent US bilateral trade agreements. So if I were, say, an Australian, or a Canadian trade negotiator, what would I be worried about? (more…)