All jurisdictions

In case you hadn’t picked it up on the many places that have reported the news – the European Parliament has voted against a ‘three strikes’ policy which would require ISPs to ‘terminate’ internet access to repeat copyright infringers. Rapporteur Guy Bono commented:

‘The cut of Internet access is a disproportionate measure regarding the objectives. It is a sanction with powerful effects, which could have profound repercussions in a society where access to the Internet is an imperative right for social inclusion.’

Here here. Extended story: IP Watch. According to that story, the Parliament voted generally in favour of the report (report available here), but voted 314 to 297 on amendment 22 to request member states not to authorise shut-off as part of the graduated response to fight copyright violations.

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.

Bill Patry this morning has a must-read post on the three step test and the defence of fair use. Basic premise: fair use is compatible with the three step test – the issue was never raised as a concern for Berne compliance in the US. Of course, just because there’s a feature of US law which wasn’t addressed by the US in its compliance process doesn’t mean it actually is consistent with Berne (moral rights anyone?).

Nevertheless, Bill’s point is well made in this case – the three step test was, as I understand it, meant at drafting to be a test that would cover existing common exceptions found in various countries. It was deliberately open-textured. An open-textured defence should be considered consistent.

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.

Peter Martin, here. Most interesting about his comments is the fact that music sales are up.

One of the issues doing the rounds right now is whether ISPs should ‘filter’ for copyright-infringing content (however that might be done). One of the many obvious issues with the attempt to do so is encryption. Solution? Ban encrypted P2P traffic, apparently.

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?
  4. 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.

Some colleagues of mine (Paul H. Jensen, Alfons Palangkaraya and Elizabeth Webster), from the Melbourne Institute of Applied Economic and Social Research, have published a new Working Paper that would be of interest to people who, like me, are fascinated by international dynamics in patenting. The paper is called ‘Application pendency times and outcomes across four patent offices‘.

OK, so it’s not the most exciting title in the world. But here’s the thing. They’ve got matched patents applied for in Europe, the US, Japan and Australia, and worked out differences – in outcomes, and how long it takes to get a patent – for the same invention. They’re measuring differences in approach between the different patent offices! How many people do you know who can do that? Here’s an extract from the introduction: (more…)

Australian IT reports today that, despite an ACMA report questioning the use of filters for today’s challenges to child safety online (see this post),

‘The federal Government’s plan to have internet service providers filter pornography and other internet content deemed inappropriate for children is going full-steam ahead. Trials are to be conducted soon in a closed environment in Tasmania.’

‘A closed environment in Tasmania’. Must. Avoid. Obvious. Jokes. At least Brian Harradine would be pleased.

See also ZDNet here.

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