Late last week Justice Arnold in the UK High Court issued his judgment in Twentieth Century Fox v BT [2011] EWHC 1981 – ordering BT to block access to a website, Newzbin2 (, that was held in an earlier case to be infringing copyright on a large scale. Rick Shera and Lilian Edwards already have some interesting comments up, but I thought I’d add my 2c worth. (more…)

At an IP Academics’ conference in early February, I remember Professor Di Nicol asking, rhetorically, ‘where has all the patent reform gone?’. Di pointed out that we’d had any number of ACIP Reports, ALRC Reports (like that on Gene Patenting), and IP Australia Discussion Papers, all with no actual legislation resulting.

No more, it seems.

No doubt many are already aware of the Intellectual Property Laws Amendment (Raising the Bar) Bill. An exposure draft for this Bill was released by IP Australia was released on 3 March, with comments due by Monday next week (4 April). The provisions of the Bill have been discussed at some length elsewhere, too, including some very interesting, thorough discussion of Schedule 1 on the Patentology blog.

I have a few thoughts though, on things that haven’t been discussed much. (more…)

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.

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.

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?

Today, at a (invitation only) conference in Sydney, Australia’s Attorney-General Robert McClelland announced Australia’s copyright reform agenda for the next little while. I wasn’t there, but a transcript of the speech is here. In short, the agenda is this:

  1. On the issues in iinet, the AG believes that ‘an industry dialogue on this issue is the most productive way forward’. Apparently ‘The Government will look closely at the outcomes of any industry discussions’.
  2. On Australia’s Safe Harbours, the AG ‘to consult on proposals to adopt a broader definition of ‘carriage service provider’.’ to broaden the availability of these Safe Harbours. There will be a consultation paper on this soon.
  3. The AG’s Department will be considering the Copyright Advisory Group’s request for an additional exception to the anti-circumvention provisions, and will ‘invite submissions seeking views on whether any other new exceptions should be included, and I again invite those affected to take this opportunity to raise their issues.’ If you want to jailbreak your iphone, or anything else for that matter, now might be the time to think about it.
  4. The ALRC will likely get a reference towards the end of the year on copyright. The terms of reference will have to be written not to overlap with other work (like the convergence review) (good luck with that). At least, the ALRC is likely to look at exceptions in copyright in the context of the online environment and whether the correct balance exists’

Interesting times.

Interesting comment from Michael Geist today on transparency and ACTA – making the argument that the failure to reveal text is far from normal in relation to plurilateral or multilateral agreements.

The Minister for Innovation has decided to ignore the Productivity Commission’s recommendations, and not to change the Australian regulatory regime for books introduced by the previous Labor government. In other words, publishers get to keep their territorial exclusivity for books, and the government thinks we should all get e-Readers instead (seriously, that’s practically in the press release).

Gans says it all really – the government, having spent the first year or two of their governmental life commissioning independent reviews and reports of various kinds has shown that lobbying can overturn any recommendations that result. Look forward to an increase in the lobbying population in Canberra.

But what I find amusing/interesting is this. When the film industry lobbied for better protection in the context of the US-Australia Free Trade Agreement negotiations, they lost. The book publishing industry has won. Which do you think has a brighter future in this increasingly audio-visual age…?

A few more news stories on ACTA including one from the ABC.

Perhaps more interesting (not for what it says, but how it says it) is DFAT’s latest update on the negotiations.

First, there’s this:

A variety of groups have shown their interest in getting more information on the substance of the negotiations and have requested that the draft text be disclosed. However, it is accepted practice during trade negotiations among sovereign states to not share negotiating texts with the public at large, particularly at earlier stages of the negotiation. This allows delegations to exchange views in confidence facilitating the negotiation and compromise that are necessary in order to reach agreement on complex issues. At this point in time, ACTA delegations are still discussing various proposals for the different elements that may ultimately be included in the agreement. A comprehensive set of proposals for the text of the agreement does not yet exist.

That might be convincing, first, if the US hadn’t shown text to a whole bunch of people. Why is it that only US-based companies or industries get a say in what gets put into the treaty? It would also be more comforting if (as might have been the case once upon a time in treaty-making practice) the parties were negotiating at a high level of abstraction. Back then, secrecy might have been more ok, because details could be worked at at a local, ie domestic, negotiation and discussion with affected parties. More recent experience indicates that in this area, DFAT are prepared to negotiate treaties that leave us little flexibility to balance domestic interests or to ensure that Australian interests are protected.

Or there’s this:

The ACTA initiative aims to establish international standards for enforcing intellectual property rights in order to fight more efficiently the growing problem of counterfeiting and piracy. In particular, the ACTA is intended to establish, among the signatories, agreed standards for the enforcement of intellectual property rights that address today’s challenges by increasing international cooperation, strengthening the framework of practices that contribute to effective enforcement of intellectual property rights, and strengthening relevant enforcement measures. The intended focus is on counterfeiting and piracy activities that significantly affect commercial interests, rather than on the activities of ordinary citizens.

Now, I don’t know about you, but the way I read that, the treaty is going to be intentionally one-sided: lots of IP-protective stuff, and nothing to balance that out. Now, I’m all for ensuring governments have the freedom to take the steps they think necessary to protect civil liberties, presumption of innocence and all that kind of thing. But unless that’s stated in the text, can we be sure that at some point we won’t be faced with a claim that we’re breaching the treaty by softening its enforcement effects?

Finally, it says that “ACTA is not intended to interfere with a signatory’s ability to respect its citizens’ fundamental rights and civil liberties”. To the extent that it proposes to include material on ISPs, ISP safe harbours (and their limitations) and ‘graduated response’ (ie three strikes type stuff), it’s very hard to see how that’s true.

Jamie Love on the Huffington Post here.
EFF here.
Howard Knopf here.
Nic Suzor/Electronic Frontiers Australia here.
New Zealand Herald here.
Atlantic here.
The IDG here.
Intellectual Property Watch here.

I would endorse the view expressed in the letter reproduced on the Huffington Post:

The only rationale for keeping the proposed ACTA text from the public is to suppress criticism and critical thinking about the norms that are being proposed. It is Orwellian and an insult to our intelligence to claim that the secrecy of the ACTA text has anything to do with national security concerns, as the term is commonly understood.

A secret process of arbitrary access, conditioned upon signing non-disclosure agreements to block public debate, does not enhance openness and transparency, and does not inspire respect for the norms that will eventually emerge.

We ask that when documents such as proposals for ACTA text are circulated to all governments in the negotiations, and when those documents are shared with dozens of Washington, DC insiders, they also be shared with everyone else.

It’s about time DFAT opened up on this too. With the USTR opening up text to 42 people from various groups, DFAT needs to open up the text: both to expert groups on all sides, and, if they want any credibility at all to the negotiations or their claim to represent the Australian public, to full outside scrutiny. Otherwise they’re allowing a situation where US companies (of various stripes) get all the inside running.

Geist has a new report on ACTA here, with some discussion of the potential inclusions in an internet text. Nothing that would surprise an Australian, given our experience with the AUSFTA.

I do, strongly, agree with Michael here, when he notes that:

On the international front, it provides firm confirmation that the treaty is not a counterfeiting trade, but a copyright treaty. These provisions involve copyright policy as no reasonable definition of counterfeiting would include these kinds of provisions.

From an Australian perspective, I suspect that the temptation for negotiators will be to say that since we are already committed to such rules in the AUSFTA, there is ‘no harm’ in signing up to similar ACTA terms. I think that would be a serious mistake. When Australia signed to such terms in AUSFTA, it did so in a trade deal, where there were other ‘benefits’ (however illusory some might have been). And it retains the freedom to step away from the AUSFTA at some future point if the costs outweigh the benefits. Signing up to such terms in an ACTA would be agreeing that these are to be general international standards: removing any remaining flexibility we have and giving a whole new set of people the right to complain if we want to resile.

It’s that time again. Anti-Counterfeiting Trade Agreement (“ACTA”) negotiators are gathering again, this time in South Korea. ACTA has been off the radar for a little while now, overshadowed by other IP developments. But now we’re up to the 6th round of negotiations, and, it would seem, interesting times await: according to the agenda that’s been published, the negotiators are expected to look at text on internet enforcement issues. As the select group – the US, the European Union, Japan, Switzerland New Zealand, Canada, Mexico, Australia, South Korea, and Singapore – meet again, it’s worth pointing out, again, the problems with these negotiations. Two broad issues: process, and substance. So it’s time to remind everyone what’s at stake here. (more…)

I was interested, the other day, to see this Online Opinion article by Nick Gruen (Club Troppo) on Australia’s pharmaceutical industry and the idea of manufacturing generics for export. The basic point of in Nick’s post is that investment in the manufacture of generic biologics in Australia is being prevented by Australian patent law and provisions introduced by the AUSFTA (or, at least, government’s interpretation of those provisions). In summary:

  1. Australia extends the term of patents for pharmaceuticals to compensate drug companies for delays in the marketing approval process;
  2. Patents last longer in Australia than elsewhere – at least partly because pharma companies apply for marketing approval later here than elsewhere, which means marketing approval is granted later, which means the drugs come off patent later.
  3. You can’t manufacture for export during the (extended) patent term, even for export (ie even where the drugs won’t be sold in Australia, and even if they’ll only be sold where the drug is off patent);
  4. By the time the drugs are off-patent in Australia, generic manufacturing based elsewhere in the world has garnered post-patent market share in many countries, putting a company that manufactures in Australia too far behind the eight-ball;
  5. Result: generics manufacture not possible in Australia meaning that high tech industry not possible here – even though result is only that the manufacture ends up elsewhere (like India) where there is no patent term extension.

Since I’m on record as saying that actual changes to IP law brought about by the AUSFTA were less dramatic than people said at the time, this warranted investigation. So I’ve investigated.

My view? Looking at the literal terms of AUSFTA, it looks like there are reasonably supportable ways through for Australia. AUSFTA is constraining (more constraining than TRIPS is), and that is a problem. But there’s always some room for interpretation. Which makes me wonder. Is this another potential case of Australia being the overly-conscientious ‘stick to full letter and spirit of the treaty law’, ‘don’t rock the boat’ goody two-shoes, adopting a conservative interpretation of treaty language that prevents it taking full advantage of the flexibilities available? More over the fold. (more…)

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