March 2011

The TPPA – for which the US IP proposals were leaked last week – is earning a little more attention: Crikey had a good short article yesterday by Bernard Keane (subscriber only, free trial), Rick Shera in NZ has been tweeting and has given an interview; Techdirt has an article; Michael Geist has offered up a few views; KEI has an overview. update: Rick Shera has the NZ take here.

For New Zealanders, this draft is all bad news – NZ is not yet subject to a US FTA so it has, for them, all the implications AUSFTA had for Australia back in 2004 (for a detailed look, see my article with Robert Burrell, available here).

For Australians, the million dollar question is – how much of this is new for us? The answer – there’s more than you might think. Again. I’ve not had time yet to do the really detailed view, but here’s the quick list of things to pay attention to as being AUSFTA-plus: (more…)

The text of the US Proposals for the IP Chapter of the Trans-Pacific Partnership Agreement have been leaked, and KEI has a copy on their website. It’s not a pretty sight: at an admittedly very quick glance, it looks like the proposal is AUSFTA-plus: that is, they’ve got even more creative in the 7 years since the AUSFTA. Sigh. Here we go again, only this time, we don’t have Europe in the room to stand against all the stuff that’s inconsistent with the European acquis, as they did in the ACTA negotiations. Be afraid, be very afraid.

Professor Joseph Weiler has now written about the judgment in the criminal libel case brought against him in a French court. A decision was handed down by the Tribunal de Grand Instance de Paris on 3 March 2011.

The details of the matter are outlined in an earlier post. In short, Professor Weiler was sued as editor of an online international law journal regarding a book review posted in the journal’s book review website. The book review was written by German academic Thomas Weigend, about a book written by Dr Karin Calvo-Goller. The review was not favorable.

The eventual result, after some correspondence between Professor Weiler and Dr. Calvo-Goller (please see my earlier post for details), was a criminal action for defamation brought in a French court against Professor Weiler. The trial took place in Paris on 20 January 2011.

According to Professor Weiler, the main arguments presented by the defense were:

1. The Court should not exercise jurisdiction, as the matter is too remote from France.
2. The Court should rule that the criminal complaint by Dr. Calvo-Goller amounted to an abuse of process.

The Court upheld both arguments. Regarding the jurisdictional issue, the Court appears to have ruled that the complainant had not sufficiently proved that the review in question was actually viewed in France during the period in which a criminal complaint needed to be filed.

Regarding the abuse of process issue, the Court noted that Dr. Calvo-Goller admitted to “forum shopping”. The Court noted that the choice of the French legal system was “artificial”, and was done because bringing the case in France would: be of lowest cost to her; give her the best chance of success on its merits, due to the nature of French law; and had the greatest potential to result in “both opprobrium and significant costs to the accused” (from an unofficial translation from the judgment).

Further, the Court noted that the review was not defamatory and that the complaint was brought in bad faith, particularly given her identity as a lawyer and someone who studied (and is thus familiar with) French law.

The Court awarded Professor Weiler 8,000 Euros in damages (approximately US$11,000). The damages will be donated to a charitable cause.

The full judgment in French and an English translation will be published on the journal’s blog in the next few days.

Update (4 March 2011): The Chronicle of Higher Education has published an article on the judgment, which includes a link to the judgment (in French), a copy of which was provided to The Chronicle by Professor Weiler.

Professor Joseph Weiler has won the defamation action brought against him in a French court, which I discussed last month here.

So far I have not been able to find any more details about the ruling, but once I do will write a longer post.

IP Australia has released the IP Laws Amendment (Raising the Bar) Bill for public consultation. It’s huge: it covers patentability standards, a patent research exception; enforcement; oppositions – you name it, it’s in there. Written submissions due by 14 April 2011. More thoughts to come…

By now, all the copyright nerds in the world know the headlines: the Full Federal Court has handed down its decision in the iiNet case; that the appeal was dismissed in a 2:1 decision (Emmett and Nicholas JJ; Jagot J dissenting). Most people also will know that the reasoning is very, very different from the Trial Judge’s decision, and certainly contemplates, in a way that the Trial Judge didn’t, that in different factual circumstances an ISP could be liable for authorising infringement by its BitTorrenting users. The various major law firms have issued their summaries, I refer you there for an overview. Assoc Prof David Brennan from Melbourne Uni has expressed his succinct, and compelling view.

The decision is really long: it half looks like all three judges wrote as if theirs was to be the main decision (with others concurring or dissenting more briefly). A close reading reveals why. Although it is fair to say that the majority judges reach broadly the same conclusion on broadly similar grounds (namely, that the AFACT notices did not contain enough information to require action on the part of iiNet), they conceptualise the facts quite differently, and demonstrate important differences of approach. My early thoughts below the fold. This one’s for people generally familiar with the case and Australian copyright law though – beginners need to start, at least, with the law firm case notes.

The final terms of reference for the upcoming Convergence Review to be conducted by the Australian government have been announced, following on the draft terms of reference provided for public comment in December.

At the Australian Broadcasting Summit this morning, Senator Stephen Conroy, the Minister for Broadband, Communications and the Ditital Economy, noted that the final terms of reference have been released. The focus of this review appears to be how best to regulate content that are accessible across a number of delivery platforms (television, computers, and mobile/telecommunications devices), rather than via a single means as in the past.

The terms of reference, which are now posted on the Department’s website, include:

–ensuring that the policy framework for media content and communications services is appropriate, and advising on ways of achieving it and on the potential impact of reform options on industry, consumers, and the community;
–looking at all relevant legislation and regulations implicated by the terms of reference (including, it appears, those outside of the Minister’s portfolio);
–considering both regulatory and non-regulatory measures to achieve the new framework;
–taking into account a number of issues when developing the new framework, including ensuring an innovative and effective media industry, the continued production and distribution of Australian content, developing appropriate ways to treat content that crosses international borders, and considering the appropriate ways in which radiocommunications spectrum is allocated.

Senator Conroy also remarked at the conference that the review committee will include Malcolm Long, who until recently was a member of the Australian Communications & Media Authority. Now an independent consultant, Long was also past Director of the Australian Film, Television and Radio School, and Managing Director of national broadcaster SBS, among other senior roles in the Australian media industry.

Update: The Department has announced that Glen Boreham, formerly Managing Director of IBM Australia, will be chairing the review committee. The third and final member of the committee will be announced shortly.

I noted the other day that the Attorney-General had set out the upcoming copyright reform agenda.

And then an email alert crossed my desk – an actual copyright reform, in a dedicated Bill. Australia is to get a new copyright exception! Specifically, we are to get new s 44BA, for ‘acts done in relation to certain medicine’. It’s basically an exception to allow generic medicines producers to use the officially approved “Product Information Document” originally submitted when new drugs are approved by the Therapeutic Goods Administration. The background to this amendment, according to the Explanatory Memorandum, is apparently this case, in which an originator pharmaceutical company got an interlocutory injunction, partly on the basis of an argument that copyright in the approved product information document would be infringed by the competitor’s use of the approved PI for its generic medicine.

This strikes me as perhaps one of the clearest arguments I’ve seen in a while for a fair use exception or other flexible exception in Australia. The very idea that someone has had to draft, and now the legislature has to pass, legislation to add this specific exception in is a clear indication that there just isn’t enough flexibility in the legislation. Is it just me?