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You heard it first … everywhere else. I know. House of Commons has reported it, as have assiduous commenters on this blog.

But for those who didn’t know: IceTV has been granted special leave. More commentary from House of Commons here. My previous commentary here and here; Bill Patry here. For my money, read David Lindsay’s slides from a presentation he gave on the case for the Copyright Society (click on ‘Download Powerpoints’ – immediately below the heading on that page): no one has done the work like he has. Oh, and don’t forget Peter Vogel – one of the men at the centre of the storm.

Fun, fun, fun.

Update: the High Court transcript from the special leave hearing is available here. It makes for some very interesting reading.

On Monday Susanne noted that ACMA had released their internet content filtering report. Well, as you can imagine, there’s been some blogospheric and professional reaction:

1. SAGE (the Sysadmin Guild of Australia) has slammed the artificiality of the methodology used (press release, media report);
2. Somebodythinkofthechildren has produced a great summary set of links to other reactions, here (hat tip: Peter Black).

So CAL has had a win in the High Court. In Copyright Agency Limited vs The State of NSW [2008] HCA 35, a unanimous High Court overturned the Full Federal Court’s ruling that Lands and Property Information (formerly the Land Titles Office), part of the NSW Department of Lands, does not have an implied license extending to allow the LPI to scan copies of survey plans, lodged with the office as a necessary element in registering title to land, and pass copies on to LPI staff, government agencies, councils, relevant authorities, information brokers and members of the public. One thing we don’t yet know is how much the NSW government will have to pay. The use will still fall within the government’s statutory license (Div ) – which means the government can make the copies but must pay equitable remuneration, to be determined by the Copyright Tribunal. This judgment presumably means the matter goes back to the Tribunal for determination.

[UPDATE: Catherine Bond has two long and interesting posts at House of Commons: Part 1 (Can’t the government just legislate to allow them to do it free?), Part 2 (but the Constitution!). Inchoate responds here.Nick Gruen has an AFR op-ed, which is re-produced on Club Troppo here – referring to Fitzgerald’s and Anderson’s (pre-High Court decision) article here.]

On one view, this is copyright run a little mad. (more…)

It’s always exciting to have a new Chief Justice of the High Court. Hearty congratulations of course to the CJ-elect, Robert French.

If this speech on IP is anything to go by – well, I suspect Inchoate is going to have plenty of material for his ‘High Court transcript funnies’ into the future. (hat tip: Emma Page Campbell and the Trade Marks Law Blog)

The Internet Industry Association, CHOICE (the Australian Consumers’ Association), the Australian Library and Information Association (ALIA) and Australian Digital Alliance (ADA) have today expressed their concern about the possible contents of the ACTA negotiations that I’ve discussed a few times (most recently here). They have also agreed a set of six principles which, in their view, should guide the Australian approach to the negotiations:

1. Transparency and accountability (all stakeholders should see and comment on text before it is concluded)
2. Presumption of innocence (no enforcement, civil or criminal, without independent findings of infringement)
3. Proportionality (all enforcement measures to be proportionate to the seriousness of any infringement)
4. Consideration of impact on other treaties and laws (no doubling up or inconsistency with Australia’s existing obligations)
5. Avoiding the prescription of surveillance technologies for IP enforcement
6. Safeguards against liability for intermediaries (such as educational
   institutions, libraries and Internet Service Providers)

More detail in the principles document, which can be downloaded from the IIA or ADA.

Press releases:

1. IIA
2. Australian Digital Alliance
3. CHOICE

Note: I am a member of the board of the ADA.

Just have to alert you to this upcoming event: Bill Patry is speaking on copyright in Australia in August. It’s not that often we have speakers here in Australia on copyright with such an amazing range of credentials: formerly copyright counsel to the U.S. House of Representatives, Committee on the Judiciary, formerly Policy Planning Advisor to the Register of Copyrights, formerly Law Professor, Benjamin N. Cardozo School of Law; author of numerous treatises and articles (including one on fair use with Judge Richard Posner), including the new multiple-volume treatise on “Patry on Copyright” – and now Senior Copyright Counsel, Google Inc. Also the author of the Patry Copyright Blog, a personal favourite.

According to his blog, Patry is going to be in Melbourne on 8/20, Canberra 8/21, and Sydney on 8/22. Details here (it seems like the Canberra one isn’t being mentioned at the moment on the Thomson site – my guess would be it might re-appear if enough people get in touch with them….).

Coverage of a previous Patry presentation (in London) here.

More detail has now emerged on ‘three-strikes’ developments in the UK. ‘Three strikes’ refers to proposals currently doing the rounds – heavily pushed by various IP rights-owning organisations – to have ISPs monitor online copyright infringement (particularly P2P), warn users, and, if infringement persists, impose sanctions such as termination of service. The French have been drafting up such a scheme, it’s being pushed elsewhere (including here in Australia) and yesterday there were two significant developments in the UK:

1. The UK government announced a voluntary ‘Memorandum of Understanding’ between six UK ISPs and BPI (music industry body) and the Motion Picture Association; and
2. The UK Department for Business Enterprise and Regulatory Reform launched a consultation on ‘legislative options to address illicit Peer-to-Peer (P2P) File-Sharing.

There is already some online commentary: see Pangloss and the Open Rights Group [update: IAM Blog also has some commentary, as does IP Watch]. Some thoughts of my own over the fold. (more…)

A group of European IP Professors have drafted a Declaration, available from the Max Planck Institute, which offers ‘a balanced interpretation of the “three step test” in copyright law’.

The Three Step Test is a provision found in various treaties on IP and particularly copyright – the Berne Convention, TRIPs, and the Australia-US Free Trade Agreement. It states that countries are allowed to introduce exceptions to copyright law, provided those exceptions are confined to ‘certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the right holder’.

The initial declaration was a collaborative effort, and it has been signed by a long list of specialists, including some names generally considered authoritative.

Part of the point of the Declaration is to offer an alternative to some of the more narrow views taken of the test thus far, including some court and tribunal decisions on the test. These narrow views tend to be put forward to limit the extent to which governments can protect users’ rights and interests when drafting (or extending) copyright law.

At the heart of the declaration is the view that the test is not a series of hurdles that users must overcome, but an “indivisible entirety”, in which “the three steps are to be considered together and as a whole in a comprehensive overall assessment”, and that the test allows policymakers to base the need for an exception on important competing considerations – particularly interests derived from human rights and fundamental freedoms, interests in competition, and other public interests such as scientific progress, and cultural, social and economic development. The declaration also usefully highlights the distinction between original rightsholders (creators) and subsequent rightsholders (distributors and commercialisers) – both of whom are important but both of whom have interests that are not always congruent.

This Declaration is worthy of attention. As a collective group, the people who have drafted it, and those who have advised on its content, and those who have signed it, comprise a group of highly experienced, and authoritative, commentators on copyright law, including international copyright law. While different views exist, this perspective is a legitimate one which may be useful to policymakers who want to protect the public interest and currently feel constrained to take a narrow view. In fact, it would be helpful if some in Australian policy circles were to pay attention to it, since it does seem, at times, that policymakers are ‘spooked’ by a narrow view of the test, into failing to protect the public interest when drafting ever-stricter copyright laws.

Update
Worth passing on the fact that Jonathan Griffiths, one of the drafters, has indicated that he’s happy to answer any questions about the declaration (his contact details here). I should also have emphasised that the drafters are seeking further signatures from those who support the sentiments/interpretation outlined in the Declaration (sign up here).

Important Links:
Download the PDF of the Declaration and accompanying statement here.
Visit the Max Planck site here.
Bill Patry has commented here.
The Drafters:

1. Christophe Geiger
2. Reto M. Hilty
3. Jonathan Griffiths
4. Uma Suthersanen

This is a brief, excellent statement on why copyright term extension is a bad idea, written by a very authoritative, and not-at-all-radical-lefty-commie-pinko, law professors.

As an Australian, I read it with interest, and some sadness – we are already protecting the ‘record companies, ageing rock stars or, increasingly, artists’ estates’ via a term extension agreed to in the US-Australia FTA.

The Times today is reporting that ‘[p]arents whose children download music and films illegally will be blacklisted and have their internet access curbed under government reforms to fight online piracy’. According to the report:

The measures, the first of their kind in the world, will be announced today by Baroness Vadera, who brokered the deal between internet service providers and Ofcom, the telecoms body…Britain’s six biggest service providers – BT, Virgin Media, Orange, Tiscali, BSkyB and Carphone Warehouse – have signed up to the scheme. In return, the Government has abandoned a controversial proposal to disconnect broadband services for users who had been caught out three times.

The scheme will, apparently, involve:

1. warning letters
2. sanctions – including “traffic management”, meaning a sudden curtailment of their internet speeds, and “traffic filtering”, a careful monitoring of the media files downloaded to an account to check whether they have paid for them.

The scheme does not, apparently, involve the passing on of personal information – BPI and copyright holders will not be given names.

I’m not sure what to think about that – on the one hand, it does get rid of some of the nastier aspects of some of the proposals that have been floating around (like termination of internet service, blacklisting and people being cut off for 12 months). On the other hand, and subject to seeing the details, it does seem to have all the problems of identifying the culprit, collective punishment, transgression of the presumption of innocence, and the imposition of sanctions without court review (see my previous comments here). It also doesn’t appear to be compulsory (in that not all the ISPs have ‘signed up’). Will await details with interest.

On further thought, I’m less and less comfortable with this. Maybe it’s those words – ‘management’, and ‘filtering’. We are, in effect, talking about the ‘management’ – and curtailing – of a fundamentally important communications medium, for the benefit of a particular industry, and with all the dangers that follow of doing exactly the same thing for other industries and interests. All to be done, it would appear, outside any finding by an independent, disinterested tribunal or court that there has in fact been mass infringement of a kind that would justify such a sanction. Yeah, my gut reaction is I don’t like it. In the end, there are important principles at stake here and they appear to be negotiated away by this deal. And I don’t think this is an end to it. But that’s just my view.

Knowledge Ecology International has published a list of proposals which they say are “the substantive suggestions for provisions of the ACTA that the RIAA [Recording Industry Association of America] sent to the USTR [US Trade Representative] on March 17, 2008″.

The wish list makes for very interesting/scary reading for those interested in what the next generation of bi- or multi-lateral treaties in IP might look like. Of particular interest are the following suggestions relating to secondary liability (liability of intermediaries for copyright infringement): (more…)

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…)