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Australia’s Patent Office, known as IP Australia, has launched its “Strategic Statement” for the period 2007-2012. Like all these things, it’s a bit boring and all motherhood-statement-y – as, indeed, one would expect.

But a couple of things about the Strategic Statement are notable. In particular, it explicitly states its ‘vision’: basically, it sees itself as a branch office, competing for business and trying to make its services more attractive to ‘customers’. But that raises some really interesting issues. Just think about the kind of business IP Australia is ‘competing’ in. On one view, it’s ‘competing’ in the business of granting monopolies. Can anyone see a problem? (more…)

The case we all thought ended two years ago (Grokster, on the liability of the providers of the file-sharing software) continues at lower levels, with an interesting judgment on final orders, discussed by Ed Felten, and Jason Schultz (part 1, part 2).

Big issue in the case: what kind of injunction to order. Do you order the defendant to stop all infringements using their software? Some? who decides whether the system is ‘good enough’? Clearly, the court has struggled with this issue. It decided on an order that required steps to reduce infringement, but not 100% effectiveness.

This is all sounding very, very familiar. Kazaa redux, methinks.

On the weekend, news that Trade Minister Warren Truss announced that Australia would join, as a third party, the dispute resolution brought in the WTO by the United States against China relating to enforcement of intellectual property rights.

[Update: apparently the Labor party (or at least Simon Crean) approves this decision, labelling it a ‘tentative’ step in the right direction.]

Hmmmm. Do you think this (a) a silly move; (b) a considered and sensible way to protect Australia’s interests; (c) another example of Australia doing its ‘me too’ act with the US on intellectual property law regardless of Australia’s own economic interests? Let’s have a think about this. (more…)

QUT. For this one. Too funny, just too funny.

The Sydney Morning Herald is reporting the news that Music Industry Piracy Investigations (MIPI), the music industry’s copyright enforcement arm, is threatening that they may have to start suing individuals for copyright infringement, if ISPs don’t do what they wish, and ‘exert more control over their users’. but is this news? And is it likely? I don’t think so. But to explain why, we need some backstory.

[UPDATE]: Today’s AFR has more on MIPI’s proposals for ISP monitoring of copyright infringement: see page 40] (more…)

Regular readers would be aware that last year I took a bit of a stand on the introduction, in Australian copyright law, of an infringement scheme – that is, on the spot fines for acts of criminal copyright infringement as an alternative to prosecution (see here for the links to all my past posts).

The Attorney-General’s Department produced, earlier this year, Draft Guidelines on the operation of the scheme. The comments period on that draft has now closed, but I thought I would just note that my submission is available from my bepress site, here. For another view, see Alex Malik, here. I looked for, but could not locate, other submissions.

[UPDATE: The Cyberspace Law and Policy Centre have made a submission, available here. EFA have also made one, available here. More if I happen to find them]

I’ve said it again, and again – what is it about internet censorship that leads to the complete departure of reason (and yes, yes, yes, I know, it’s an election year). Sigh grumble grumble.

I nearly choked over my wheaties this morning when I saw this story on the front page of the newspaper, according to which:

INTERNET service providers will be forced to filter web content at the request of parents, under a $189 million Federal Government crackdown on online bad language, pornography and child sex predators.

Let me see, which countries use ISP or country level filtering? China … Saudi Arabia … Thailand … Kazakhstan … Georgia … Iran … Sudan … Malaysia … Tunisia … Uzbekistan… Belarus. Yes, there’s a set of countries I aspire to join.

Now, admittedly, the proposal seems to have ISP level filtering ‘on request’, rather than entirely imposed from above. Unlike the Chinese, Australians will have choice about whether to have their internet service filtered (at least to some extent – there’s plenty of laws in place to require Australian-hosted material to be taken down). The idea seems to be that parents have trouble installing PC-based filters (or at least installing them so their tech-savvy kids can’t get around them) – so ISPs should be forced to do that work for them.

But then that raises interesting issues of cost, doesn’t it? Let us see, what did DCITA itself conclude (note: big pdf) just a couple of years ago?

• Filtering technologies have not developed to the point where they can feasibly filter R-rated content hosted overseas that is not subject to a restricted access system.
• Complex analysis filtering technologies are not practical in a national proxy filtering system. However, due to developments in search algorithms and server power, Uniform Resource Locator (URL) or Internet Protocol (IP) addressed-based filtering does appear technically feasible at the ISP or server level.
• There are a number of practical difficulties in mandating URL/IP based filtering at the ISP level, including accuracy rates and, according to the Internet industry, impact on broadband. Ovum has estimated that URL/IP based filtering would involve implementation costs of approximately $45 million and ongoing costs of more than $33 million per annum. Such costs could significantly impact on the financial viability of smaller ISPs, in particular. Given the limited benefits of an ISP-level filtering system, the costs of a mandated requirement to filter do not appear justified.

So. Show me the report that says something has changed. Oh, no, that’s right, this is another one of those back of the envelope ‘it’s important and it’s an election year’ things. Sigh, grumble, grumble.

And it does seem like a lot of money in order to make it a bit harder for a few kids to access inappropriate material, and to save those kids’ parents the trouble of installing filters on their home computers. cost effective? methinks not. Oh, yes, right – that’s not the issue, it’s an election year.

[Update: I found this op-ed by Julian Burnside pretty compelling.]

The way that the imprisonment, interrogation, bail release then immigration detention of Dr Haneef is playing out is really making me feel physically ill, and deeply ashamed of my country. And while this is a tech law blog, and I’m not a terrorism or criminal law or immigration expert, I just feel like I need to put my 2c out there, if only for the sake of my own sanity.

Over the fold, I’ve commented on four aspects of these developments that have shocked me to the core: the fact that the legislation seems to allow for unlimited periods of detention without charge; the breadth of the terrorism provisions, the territorial reach of Australian law in this area, and finally, the complete disregard of the rule of law displayed by government ministers, in particular, Kevin Andrews. The whole thing makes me wish I were citizen of a country whose government actually thought civil liberties, democracy, and the rule of law were important.
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Can’t happen quick enough in my view.

Google has a new public policy blog, and in an interesting post, Andrew McLaughlin (their Director of Public Policy and Government Affairs) notes a story now circulating – that Google has been having

fairly quiet discussions …with various parts of the U.S. government, including the Departments of State and Commerce, the Office of the U.S. Trade Representative, and various House and Senate committees.

in which Google has been making the case that ‘For Google, it is fair to say that censorship constitutes the single greatest trade barrier we currently face’, and that:

Just as the U.S. government has, in decades past, utilized its trade negotiation powers to advance the interests of other U.S. industries, we would like to see the federal government take to heart the interests of the information industries and treat the elimination of unwarranted censorship as a central objective of our bilateral and multilateral trade agendas in the years to come.

This has of course elicited some of the expected critiques – ‘how can Google say this when it actively collaborates with censorship in foreign countries’. Personally, I think that’s a pointless and ill-considered criticism – Google might well be censoring now – because, oh, it has to under the laws of the countries where it operates. That doesn’t prevent it actively trying to break down the censorship rules so it can stop complying with them.

I think there’s more serious criticisms that need to be borne in mind by Google when it makes this argument about injecting its concerns into bilateral trade negotiations. As someone who is based in Australia – a country that has had a bilateral trade negotiation with the US – I find the idea of the US injecting even more policy issues outside immediate trade issues into its FTAs a bit offensive. I know, from the Australian experience, what this means. And that is, that good as the intention might be, it is likely to become seriously perverted by the USTR and trade negotiation process. I hope (in the spirit of constructive criticism) that Google gives serious thought to whether this can work as it might hope, even in the most hospitable environment. (more…)

Hew Griffiths was sentenced to over 4 years in gaol on Friday for criminal copyright infringement (the US court has recognised time served already in Australia challenging extradition; this means he will spend about 15 months in prison in reality). Hew Griffiths was extradited to the US from Australia in February to face a US court – even though he had never previously set foot in the country.

Earlier commentary on the case can be found at Larvatus Prodeo, Catallaxy, Legal Soapbox (here and here), Inchoate, and IPWars – and even the IPKat, as well as the mainstream media (here and here). Malik and the House of Commons have commented on the endgame, as has Club Troppo. It’s interesting to read the commentary: a lot of people really are quite torn over this one. Griffiths did some pretty serious stuff in terms of copyright infringement – about as serious as you can imagine it getting. Nevertheless, is extradition appropriate/proportionate?

Today, I have a short comment in Crikey. More over the fold. (more…)

Just prior to the last election campaign, there was a big debate about patent evergreening, in which IP academics and patent lawyers around the country nearly had heart attacks as Opposition leader Latham and PM Howard debated the finer points of patent law in the heated atmosphere of Parliament. Too much excitement!

Part of the debate was about whether provisions in AUSFTA, requiring linking of marketing approval mechanisms for drugs (ie, the Therapeutic Goods Administration processes) and patents would cause or contribute to or enable ‘evergreening’. Latham coined the immortal phrasing ‘bodgy patents’ to explain this.

Well, I know this is all water under the bridge now. But I think it’s worth point out that now that the US has a democrat-dominated Congress, there are some changes happening in trade policy. Specifically, for the agreements still awaiting Congressional approval (Peru, Colombia, Panama, Korea), there’s been an agreement reached between USTR and the Democrats in Congress to change the FTA text – specifically, to introduce more flexibility in the patent provisions (as well as some labor/environmental stuff).

You mean all that angst was for nothing? (more…)

Readers of my old blog, Weatherall’s Law, or LawFont from last year may recall that I engaged in a little personal crusade against the re-writing of the criminal provisions that occurred via the Copyright Amendment Bill (see here, here, here, here and here for starters, or have a look at my submission and supplementary submission to the Senate Committee).

At the time, of course, I knew I wasn’t spouting a new line – commentators of all stripes have expressed scepticism about the use of criminal enforcement in relation to IP. So I thought I would just point you all here, where William Patry comments on criminalisation of copyright, quoting Sir Hugh Laddie to similar effect.

By the way, it’s notable that despite the fact that the new criminal provisions in the Australian copyright law, and the capacity to issue on the spot infringement notices, have been around now for nearly 6 months, the government does not appear, so far as I can ascertain, to have yet drafted or publicly consulted on guidelines for their use. So much for the (government-led) Senate Committee’s Recommendation Number 3.

Well, well, well: those of us who, in the fine tradition of lawyers everywhere thinking their own area is sexy, had decided that the High Court would take any old IP case that sounded vaguely interesting, will have to revise their views.

Not only did the High Court refuse special leave in the BP colour trade mark case, but now they’ve refused special leave in the Cooper case on authorisation liability (transcript not yet available).

This one, I have to admit, surprised me. I was very critical of the Full Court judgment when it came out late last year. Now we are stuck with it. Despite the fact that it is arguable that Australian authorisation liability for copyright infringement is now more restrictive (ie, more copyright-owner protective) than elsewhere. Certainly Canada is less restrictive – there, our caselaw was explicitly rejected. Arguably things are less restrictive in the UK, too. Interestingly, our law is more copyright owner protective even than the US: and it’s not just me who thinks so: see this paper by acknowledged experts Sam Ricketson and Jane Ginsburg).

David Shavin in the High Court recently:

It is not an overstatement, although some may regard it as slightly melodramatic, to say that there are aspects of trade mark law which can be seen to be inexorably sliding out of control. This Court, and only this Court, can bring it back to its true course. In a series of decisions culminating in the decision in this case, successive Full Federal Courts have failed to appreciate the true nature of a trade mark as defined by section 17 of the Act.

The High Court was not convinced, refusing BP special leave to appeal from the Full Federal Court’s rejection of its trade mark application for green as the predominant colour of service stations. According to Justices Gummow and Hayne, t’o the extent that the applicant seeks to assert that the Full Court made errors of law in the construction of provisions of the Trade Marks Act 1995 (Cth), we are not persuaded that these contentions enjoy sufficient prospects of success to warrant a grant of special leave’. This is interesting, as the Full Court decision certainly isn’t without its critics.