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Following up from my long post on the case, some more comments and things on IceTV that are interesting:

1. This thread discussing the decision in the Digital TV Forum
2. This post on the case, with a reference to a really interesting paper by Kathy Bowrey on digital television and copyright;
3. The responding press release from IceTV (foreshadowing a special leave application if necessary).

One thing that I mentioned in my previous post was that I had a vague recollection something was already happening on electronic program guides and their provision. I’ve looked into that, and it appears that:

1. FreeTV Australia (ndustry body which represents all of Australia’s commercial free-to-air television licencees) made two announcements last year. First in July they announced they would be providing the electronic program guide (EPG) to ‘ manufacturers of set top boxes, personal video recorders (PVRs) and other service providers’ - BUT with conditions ‘designed to protect copyright, protect the integrity of the program information and facilitate collection of ratings information’ (which probably means ‘no ad skipping allowed’, but the press release doesn’t specify);
2. Then in November 2007, they announced that they would be ‘openly broadcasting program listing information by 1 January 2008, creating Australia’s first free electronic program guide (EPG)’. To be honest, I don’t know what the impact of that is.

It’s also worth noting that the Australian Communications and Media Authority has the power under the Broadcasting Services Act, s130K, to register Industry Codes, including (as an example) codes of practice relating to EPGs. ACMA also has the power to request that a code be established by an Industry, and ‘a reserve power to make an industry standard if there are no industry codes or if an industry code is deficient’ (s130C). As far as I know, ACMA has not in any way exercised this power, and while there’s a negotiated ‘deal’ on EPGs, as in the announcements above, I couldn’t see any reference to it being an industry code in any way.

Update: Bill Patry has commented on the case from a US perspective - here.

As I flagged yesterday, yesterday morning the appeal judgment in the IceTV case was handed down by the Full Federal Court. This truly was an all-stars copyright case: interesting issues, an all-star IP bench (including the CJ himself, plus two senior IP heavies - Justices Lindgren and Sackville) (note too - the same bench that sat on the Desktop Marketing case), no less than 4 senior counsel (all of them IP heavies in their own right) plus juniors.

I’d give you background on the case but I don’t really need to - Peter Black has already done that albeit a while ago now, and so have I. In summary, the case raises the question whether Channel Nine could use its copyright in its television program guides to prevent a rival publishing an electronic program guide compiled from a combination of recording what was shown on TV, ‘prediction’ and updating from published guides. Nine lost the original case but have won on appeal: that means they have regained their rights of complete control over programming guides. From a competition perspective, this raises some interesting questions which Joshua Gans has discussed before. Over the fold, my preliminary thoughts on the copyright ruling. (more…)

Just a quick note: the Full Federal Court judgment in IceTV is now up on AustLII. The case concerns the electronic program guide for television: Channel Nine sued a company which was providing the EPG for people wanting to make fully functional use of digital television recorders. Background on the case here.

At first instance, IceTV won - Bennett J found that there was no copyright infringement. It was a ruling that surprised a lot of people - so perhaps the fact that the appeal has been allowed - that IceTV has lost its case in the Full Federal Court - is less surprising. Although quite possibly pretty inconvenient for the makers of digital video recorders of the TiVo type.

In any event, more comments once I’ve digested what the judgment actually says!

The 2020 Submissions are online - over 8,000 of them. And I’m impressed: the Australian Federation Against Copyright Theft have put a submission in, and there are no prizes for guessing their favourite big picture ideas for making Australia a great place:

We encourage the 2020 Summit to commit to the following measures: - acknowledge the threat posed to creative works in the digital age; - provide for effective, adequately resourced enforcement of copyright laws against copyright crimes; - educate the public about the consequences of copyright theft and inappropriate consumer behaviour - to respect copyright no matter what the ‘capacity’ of the digital device; - regulate ISPs to ensure they respect both the copyright content on, and the terms and conditions of their networks; ensure ISPs work with copyright owners to educate consumers, respond to illegal activities and prevent illegal distribution of copyright content on their networks.

And here’s me thinking the summit was supposed to be a place for generating new and interesting ideas…

Update: oh, look, MIPI too (hat tip: Matthew Rimmer). And look - same ‘idea’:

To address these issues, the Australian music industry, supported by a range of other content owners are proposing a “notice and disconnection” or 3 strikes and out system for persistent illegal file sharers. In short, the proposal seeks to deter IP theft by establishing a streamlined industry mechanism where the IP addresses of users involved in significant copyright infringements form the basis of a graduated process of warning notices, suspension and ultimately disconnection by Australian ISPs. Of course, disconnection will only occur as a last resort.

Ah yes. The three-strikes policy. Just what Australia needs to power into the next few decades. What a wonderful ‘big idea’. Won’t that just empower us all, and make that broad technology work for us.

Bill Patry has another must-read, where he’s analysed a submission of the ‘Music Business Group’ in the UK opposing the introduction of a personal format-shifting exception not unlike the one we introduced in Australia in 2006.

You really must go and read Bill’s post, but one thing that really struck me was the summarised argument by the MBG: (more…)

I was going to write about the latest decision of the Federal Court on Cadbury’s long, drawn-out battle to prevent Darrell Lea use the colour purple to market its goodies, including chocolate (I’ve written about earlier decisions; see here, here, here).

But then I found this masterful post by TM expert, Mark Davison. Nuff said.

Waugh Partners have released the Australian Open Source Industry and Community Report, 2008. It’s both beautiful, and interesting - and doesn’t support all the myths we generally have about the open source community. Congrats, Jeff & Pia.

Go read it!

One project homes company in Australia now has a 70+ year monopoly on putting a kitchen, family room, meals area, and rumpus room around a covered alfresco area at the back of the house. What is more, companies in the project homes area are doing to have to be really careful about how they approach their research on competitors’ houses - bearing in mind that visiting other designers’ houses, particularly if you do it more than once, will be held against them in a court of law.

Got your attention? Good.

Now I should qualify that slightly overstated introduction.

Perhaps more accurately, following the Full Federal Court decision in Metricon Homes Pty Ltd v Barrett Property Group Pty Ltd, it is going to be more difficult for project home companies to do open plan living around a covered alfresco space. So far, Barrett Property Group Pty Ltd (t/as Porter Davis Homes) have succeeded in two lawsuits against two other project home companies for copying their arrangement of rooms (refs at bottom of this post). I find the judgments – particularly the latest appeal judgments – interesting, and in some respects, a little disturbing. More over the fold. (more…)

Some Australian jurisdictions are experimenting with human rights charters. A very smart colleague of mine from Melbourne Uni, Jeremy Gans, has started a blog, Charterblog, to follow what’s happening. A valuable (and very attractively presented) resource, particularly now that there’s some discussion of a possible Federal version. Welcome to the blogosphere, Charterblog.

Here’s a report Peter Garrett might be interested in: the UK IP Office has released a Report it commissioned into the UK Resale Royalty Scheme.

The UK introduced such a scheme (which provides a percentage of sale prices of original artworks to the artist) in 2006 - as a result of a European Directive. Peter Garrett has in the past indicated some support for a scheme (for a potted history of developments in Australia, see here).

Some findings:

1. About £2.5 million of Artist Resale Rights is being collected annually, of which around £1.5 million accrues to British artists. (NOTE: at the moment, the British scheme does not apply to dead artists - but it will in the future).
2. Most of these payments are quite small, and the median payment to artists based on auction house data is £256. Auction house data indicate that during the period since its introduction, 80% of all ARR payments should have gone to the top 100 artists.
3. The cost of administering ARR entailed a set-up cost in the region of £1 million and recurrent administration costs of £50,000 per year.
4. While the administrative burden of ARR does not seem to have been excessive for most businesses, there have been a problems associated with difficulties in establishing the nationality of artists among other things. A significant minority of art market professionals, including the major auction houses, deem the administration of ARR to be intrusive and burdensome.

Doesn’t sound like the kind of thing that is going to change the world for artists to me.

I’ve mentioned before (here, here, here) the idea, currently floating around in just about all the Western countries, that ISPs should adopt a ‘three strikes and you’re out’ policy, disconnecting copyright-infringing internet users. The push for such a policy by certain copyright owner organisations at the moment is nothing if not vigorous: and appears to be making some headway: the UK seems to be considering it; France too.

Anyway, I’ve outlined in the past all kinds of things we would want to know before such a policy was adopted: not least of which would be consumer representation in any negotiations (Choice, or the Communications Law Centre, would both be candidates here). Now I’ve found a description of a (characteristically critical) presentation given by Lilian Edwards last week at an LSE conference. Worth a read if you’re interested in these issues, and so is Lilian’s follow-up comment.

If you had any doubt at all about who lies at the bottom of the heap in the publishing industry, try reading this new report from the Society of Authors, Educational Publishing in Australia: What’s in it for authors?.

In a word? Nada. Zip. Nothing but the joy of writing and seeing your name in print. A sample quote:

Educational publishers are displaying a profound disregard for the basic rights and entitlements of authors, and have been getting away with it because individual authors are conned into thinking that they’re being offered a good deal relative to the rest of the market. This is not only myopic business practice, it is also a self-fulfilling prophecy that is leading to more and more authors giving up the craft, leaving us with a financially and intellectually impoverished culture industry. … There is a sinister practice in the educational publishing sector of publishers profiting from the passion of authors while treating them with supreme indifference if not contempt.’

And some facts found in the report, based on a survey of educational authors:

1. One publisher (Pearson) controls 36% of the Australian educational market - a market share unparalleled in any other English language market.
2. In 2003-2004 royalties or fees paid to authors represented 6.5% of publishers’ total expenses - down from 11% in the previous year.
3. Royalty rates in contracts offered to authors are going down.
4. Contracts increasingly assign to publishers the lion’s share of CAL payments - 80% in the case of recent Pearson contracts.
5. 52% of the educational authors in the survey received any payments at all from CAL for copying of their work.

I wonder what the board of CAL make of all this? It’s worth noting, too, that CAL just recently put in place a system for automatically recognising contractual divisions of rights to receive CAL payments. Can’t help but think that is going to be vastly to the benefit of publishers, at least in the educational publishing market. One hopes that the ASA will be taking this up with CAL.

Forget the CLRC’s Copyright and Contract recommendations on contracting out of exceptions. One can’t help but wonder whether we shouldn’t be looking at the various mechanisms found elsewhere in the world that seek to protect authors against the might of the creative industries intermediaries like the publishers (see William Cornish, ‘The Author as Risk-Sharer’ (2002) 26 Colum. J. L. & Arts 1, or in a different context, my paper on performers’ rights here.)

It also raises a rather interesting question for the OAK Law project. One of their proposals, back in their 2006 report, was to ‘Develop and implement systems designed to raise awareness and understanding among academic authors, research offices and repository administrators of…how to negotiate an appropriate allocation of copyright interests with publishers.’ I’m sure their thinking has progressed since August 2006; it will be very interesting to hear, in due course, what they think can be done in this space, and how, in a concentrated educational publishing market where authors’ rights seem to be decreasing, rather than increasing.

Hat tip: the very useful Creative Economy website, where you can learn of all sorts of interesting new reports on creative industries.

Just a quick note to let people know that the deadline for making submissions to the review of legal deposit requirements in Australia - which I’ve mentioned before - has been extended to Friday 2 May 2008 (it was originally supposed to close in January 2008).

All the info is here. I’d encourage people to give it some thought. Issues raised include:

1. Should people who publish films, or electronic materials, be required to ‘deposit copies’ so that we can make sure we are creating a record for future generations?
2. Should we require deposit of electronic copies of printed material (should publishers have to deposit electronic copies of books?). If so, how should these be made available? Should the NLA supply electronic copies to regional libraries to increase access? Or not…?
3. Should we be ‘depositing’ internet material? How does the role of organisations like the Internet Archive, or the National Libraries ‘Pandora’ project, overlap with/interact with legal deposit?

Anyone who has ever had an interest in the Google book project, or ever looked for a document on the Internet and found it gone, should be interested in these issues.

Update: I am reliably informed that I am utterly nerdy for thinking this might be interesting. Sigh.

I could never work out why the US Free Trade Agreements included a provision on patent term extension for ‘unreasonable delays’ in the patent office (see, eg, Australia-US Free Trade Agreement Art 17.9.8). I figured there must be delays in some of the developing world countries they negotiate with.

Now I understand why - according to Patently-O, ‘the vast majority of issued patents have an extended patent term due to Patent Office delay’ - at least in his sample of patents issued in March 2008.

PS - note that the Australia-US FTA provision isn’t actually representative. Most of the FTAs require extension in the case of delay in relation to a single patent. Ours only kicks in if there is a pattern of unreasonable delays.

This morning, one of the authors of the iPhone paper I mentioned earlier this week defends his views against Gans’ comments. One thing about Dale’s defence struck me as interesting, and that was this:

Professor Gans correctly makes the point that Apple could try and obtain permission (technically, an exclusive dealing notification) from the ACCC. Actually obtaining that permission is not a given. I think that the ACCC might well object, which they can do if they are not satisfied that the public benefits of the third-line forcing would outweigh the public detriment, and I think that balance would be weighing against Apple.

Hmmm. Firstly, I’m not sure it’s correct to characterise notification as meaning the ACCC gives ‘permission’. In fact, my reading of the Act suggests that lodging a notification provides automatic immunity from the date it is lodged with the ACCC (or soon after in the case of third line forcing conduct) and remains in force unless revoked by the ACCC.

Secondly, while it is technically true that non-revocation by the ACCC is not a ‘given’, they’re not exactly in the business of revoking these things. The statistics to some extent speak for themselves. According to the ACCC’s 2006-2007 Annual Report, page 92:

1. In 2006-2007, the ACCC received 694 new notifications, and revoked 2 (that’s a revocation rate of 0.3%). 9 were withdrawn by the notifier.
2. In 2006-2006, the ACCC received 1099 new notifications, and revoked NONE (that’s a revocation rate of zero %). 6 were withdrawn by the notifier.

Also, in determining whether a notification should be revoked, the ACCC has to take into account whether the detriment caused by the arrangement outweighs the benefit. The ACCC’s guide to exclusive dealing notifications on page 8 records the ACCC’s view that “[t]he detriment will be more limited when potential buyers of [the iPhone] have alternative sources of supply for [the iPhone] or substitute products.” Surely, except to the most ardent Apple fanboy, there are numerous economic substitutes for the iPhone (as indeed Gans pointed out).

Again, IANACL (I am not a competition lawyer). But I’m not yet convinced of this one.

Update: Gans responds. And the discussion is ongoing over on CoreEcon in the comments to that thread.
Further update: Clapperton is also getting into the discussion.