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The draft Terms of Reference for the Government’s review of the laws relating to the converged media and communications industry have been published.

Part of a FAQ on the website of the Department for Broadband, Communications and the Digital Economy, which is conducting the review, notes that:

* ‘Convergence’ describes the trend whereby devices (such as televisions, mobile phones and computers) and platforms (such as broadcast, telecommunications and broadband) that once had distinct functions may now support many different services and applications.
* You can now watch a TV show on your television, your computer or your phone. You can also make a phone call from your laptop or your email account. These examples illustrate the trend of convergence—that is, when the service experienced by the consumer is similar regardless of the network or device that delivers it.
* Convergence is driven by a range of evolving and new technologies including internet protocol networks, high-speed broadband and smart devices and phones.

The Department also notes that the incentive for the review, which will be conducted during 2011, is to ensure that Australia’s existing regulatory frameworks for broadcasting, telecommunications, and radiocommunications continue to operate appropriately in a media and communications sector that is becoming increasingly converged. Communications Minister Senator Conroy remarked in the media release announcing the review that the introduction of the National Broadband Network will accelerate the process of convergence. He also noted that the review will “look at all content delivery platforms including broadcast, mobile and fixed telecommunications and the internet”.

This review will consider possible changes to the three main acts governing the sector: the Broadcasting Services Act 1992, the Radiocommunications Act 1992, and the Telecommunications Act 1997.

The Department is accepting submissions on the draft Terms of Reference until Friday 28 January 2011.

It seems that digital television broadcasts in the United States are increasingly being received not via subscription television, but over the airwaves with the help of an old-style technology: rabbit ears.

Viewers who are either unwilling or unable to pay for increasingly expensive cable or satellite television are turning to free-to-air television, with the help of the new generation of rabbit-ear type antennas, which are designed to receive digital broadcasts.

The evidence of this move is not simply andectodal, but is supported by cable television companies and analysts, who have noted drops in pay television subscriptions. As further evidence, at least one cable provider (Time Warner Cable) started offering in November a cut-price package with a smaller range of channels.

Interestingly, it seems that consumers choosing free-to-air over subscription television services are supplementing their viewing with specific programs from cable television operators downloaded over the Internet, including from iTunes.

In a market saturated by subscription television options, is the move back to free-to-air a sign that cable television is simply too expensive these days, or that free-to-air plus selectively purchasing your favorite cable shows on iTunes is both more economical and more enjoyable? Probably both–as well as being a function of the nature of digital television broadcasting itself. Whereas analog television signals become progressively unclear as you move further away from the source of the signal (leading to constant adjustment of those rabbit ears at the margins), digital television broadcasts are typically either received fully or not at all. So remedying poor reception is not such a strong reason to go to subscription television any more.

The article does not discuss the use of external antennas (masthead or otherwise) at all. I wonder if viewers able to do so are also investing in antennas on their roofs?

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.

There have already been a few articles about the Larrikin Music Publishing Pty Ltd v EMI Songs Australia Pty Limited case.

The first thing to note is that the decision is just on a preliminary question. This is a procedural device used where it is likely to help save the court’s (and parties’) time and resources. In this case, the issue is just: for the purposes of this suit, does the applicant actually own the copyright it is seeking to enforce. If not, obviously, it would be possible to dismiss the case straight away, saving the expense of a trial. In this case, the preliminary question is simply a determination of a basic fact. (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…)

SMH has the story here.

more analysis later.
updated: judgment now available on AustLII.
Further update: commentary will have to wait until after my classes today. But please consider this an open thread for any discussion!
Further Further Update: Warwick Rothnie has some very interesting thoughts on the case here. He’s certainly right about one thing. There’s a heckuva lot of food for thought in these judgments.

“Senator Kim Carr, Minister for Innovation, Industry, Science and Research, today called for written submissions on proposed reforms to Australia’s intellectual property (IP) system.

A strong and efficient IP system is a cornerstone of successful innovation.

The proposed reforms are designed to help Australian innovators take their inventions to a global marketplace and encourage foreign investors to bring their new technology to Australia.

This means growth both for our economy and our skilled workforce.

The call for submissions provides a valuable opportunity for interested parties to contribute to the Government’s work in strengthening Australia’s innovation sector and boosting the nation’s economic prosperity.

The multifaceted reforms aim to reduce barriers in the innovation landscape for researchers and inventors, allow patent claims to be resolved faster and strengthen penalties for counterfeiting and other serious forms of trade mark infringement.

The Australian Government is committed to working with business and professionals to get the balance right so the IP system can better serve innovation in Australia.”

Media Release here.
Discussion/Reform Papers on IP Australia Website here.

Submissions due by 8 May 2009.

According to the Exec Summaries of the two papers, the proposed reforms aim to improve the balance in the patent system by:

1. raising the thresholds set for grant of a patent in Australia and better aligning Australia’s key
   patentability standards with standards in countries which are our major trading partners; and
2. improving the scope and stringency of examination to reduce inconsistencies and give
   greater certainty in the validity of granted patents.
3. introducing a statutory exemption covering certain experimental activities

Let the fun begin!

I’ve discovered podcasts. Yes, I know it’s a little late in the piece, but really, it’s been a pretty recent thing: since I (a) got an iPhone and (b) started walking to work every day. At half an hour each day, I get a lot of listening done and music doesn’t quite do it for me. And lo and behold, there are all these interesting things to listen to online. I want to promote one specific thing, which is actually not a podcast, but a Webinar:

Managing IP magazine’s Asia editor Peter Ollier will be conducting a live online interview with IP Australia director general Philip Noonan on Friday March 6 at 4pm Australian Eastern Standard Time (3pm for us Brisbanites).

The one-hour interview will cover topics such as the recommendations in Terry Cutler’s venturousaustralia report, innovative step and inventive step in Australia’s patent law, the controversial Anti Counterfeiting Trade Agreement and the impact of the credit crunch on patent and trade mark applications in Australia. Registration for this event is free. To register please go to www.managingip.com/webseminars. Listeners will also be able to submit questions during the interview. Click here to go to the registration page.

Hey, how often do you get to hear about IP from the ‘horse’s mouth’, the dude in charge, so to speak? Think up your tricky questions about ACTA and the Innovation Review now! The other thing I wanted to mention was podcasts. There are a lot of cool podcasts out there. Apart from the wonderful material from our ABC, it’s worth highlighting:

1. The IP Colloquium (run by Doug Lichtman, UCLA);
2. The Software Freedom Law Center podcasts (all things open source)
3. The amazing collection of stuff at iTunes U – lots of free lectures on all kinds of interesting things: from Berkeley, Stanford, LSE and other exciting places;
4. TED.com. Very cool.
5. Digital Planet at the BBC
6. Search Engine on CBC (Canadian Radio)
7. Academic Earth (great lectures on all kinds of topics)

I’m sure there are others. Feel free to add them in the comments. Always looking for good new listening!

IP Australia is reviewing the penalties (criminal offences) and additional damages in trade mark law. Actually, they’ve been reviewing this for a while: we had the ACIP Review, and then an Options Paper (pdf) published by IP Australia back in November; submissions on the Options Paper close this week.

Anyway, I was just reading through the options paper again, and I noticed that IP Australia is proposing to adopt something like the tiered system of liability that we now have in the Copyright Act: or at least, some of it. They are proposing to have indictable offences for intentional trade mark infringement, and summary offences for negligent trade mark infringement. This, of course, is based on the Copyright Act system. And so I thought it was raising the question again: what kind of a silly standard for criminal liability for IP infringement is negligence? (more…)

Artist Shepard Fairey, who created the “Hope” poster of now President Obama, has filed a pre-emptive law suit against the Associated Press. The suit, which has been filed in United States District Court in New York, seeks a declaratory judgement for Fairey ruling that the poster is protected by fair use and does not infringe AP’s copyright in the photograph. The suit also seeks an injunction preventing AP from asserting its copyright in the photograph against Fairey.

From left to right: the original AP photograph (taken by Mannie Garcia in April 2006) and Shepard Fairey's poster

So, how does Fairey’s claim measure up against the four factors considered in fair use arguments? (more…)

Ever wanted a copy of the Australian Constitution when not at your desk? If so, you may be interested to hear that the full text of the Australian Constitution is now available for your iPhone (or iPod Touch). It’s a free application, available internationally through iTunes (please note that this link will work only if you have iTunes installed).

It may interest readers to know that our own Ben wrote the application and uploaded it to the Apple App Store.

Thanks, Ben!

There is certainly a value to social networking websites. Some serve professional networking purposes (such as LinkedIn). And others, like Facebook, have proved to be an effective means of connecting with old friends (for me, including ones I’d lost touch with completely).

It’s not news that we use these websites at our own peril. But here’s a couple of more reasons to be wary, both legal and technical.

A new Facebook notification? “You’ve been served!”

In what seems to be a legal first, a judge of the Australian Capital Territory Supreme Court has upheld the right of lawyers to serve legally binding court documents and notices by posting them on defendants’ Facebook sites.

Plaintiff MKM Capital applied to Master David Harper of the Supreme Court to use Facebook to serve notice of a judgment on two borrowers who had defaulted on a loan. The defendants had failed to repay a loan of $150,000 they borrowed from MKM last year to refinance their mortgage. After being granted a default judgment for the loan amount and for possession of the house after the couple failed to appear in court to defend the action, MKM then had to locate the defendants and serve them with the papers.

After hiring private investigators and 11 failed attempts to find the couple, the lawyers identified the Facebook profiles of the defendants, convinced the court that those profiles did in fact belong to the couple, and satisfied the court that communication through their Facebook pages was a sufficient means of communicating with the defendants.

Wormholes

It was just a matter of time before social networking websites became infected with computer viruses. And now it’s happened: Koobface, a Trojan worm, has been making its way through Facebook and to other social networking websites. The worm generates profile comments that encourage users to click through to an external website that pretends to offer a video to view, but then says that an upgrade of Adobe Flash is necessary first. Users who click on the “install” button infect their computer with the virus. The result? Enabling identity theft and click fraud.

Wonderful post from Professor Mark Davison on the Australian Trade Marks Blog. ‘Nuff said.