All jurisdictions

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).

The Fairfax press reported a couple of weeks ago that TiVo, the “time-shifting digital video recorder” is coming to Australia in early 2008 courtesy of a deal struck with Channel 7. On the surface, this seems like a good thing for everyone – that is, everyone who cares about TV- competition between service providers, choice, flexibility and further integration with on-line media services and sources. These digital TV services are evolutionary and it’s good that they seek to move their audiences beyond the one-way flatscreen TV experience. Still, I’ll be interested to see how it pans out, given that the wrangle over the electronic programme guide (EPG) has been foreshadowed, including the “one EPG to rule them all” argument being raised yet again…now the EPG debate has been around for a while, both here and abroad, in respect of access to the subscription tv EPG…hmmm, interesting times ahead…

Judge Eduardo Robreno of the United States District Court for the Eastern District of Pennsylvania has handed down a very interesting judgment dismissing two motions by Linden Labs (the makers of Second Life) in a lawsuit brought by lawyer Marc Bragg.

Bragg signed up to Second Life in 2005. He said he was induced into “investing” in virtual land by representations made by Linden and Rosedale in press releases, interviews, and through the Second Life website, and paid real money as “tax” on his virtual land. (more…)

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.

BDW has alerted me to the fact that:

‘The NSW Legislative Council Standing Committee on Law and Justice has released their final report on the inquiry into unfair terms in consumer contracts. This is likely to have a direct impact on users of internet, mobile phone and cable television services, amongst others. … The Committee has recommended creating a taskforce within the NSW Office of Fair Trading to develop and implement a scheme for the protection of consumers in relation to unfair terms in consumer contracts. The scheme will be based on the Victorian model.’

I think this is an interesting development, but it also puts me in mind of something that Mark Lemley points out in a new paper – that it’s not just consumers who are affected by so-called ‘unfair contracts’:

‘The rise of terms of use has drawn a great deal of attention because of the mass-market nature of the resulting agreements. Terms of use are drafted with consumers or other small end users in mind. Commentators – myself among them – have focused on the impact of this new form of contract on consumers. But in the long run they may have their most significant impact not on consumers but on businesses. … Businesses … are presumed to know what they are doing when they access another company’s Web site, so courts are more likely to bind them to that site’s terms of use. Sophisticated economic entities are unlikely to persuade a court that a term is unconscionable. And because employees are agents whose acts bind the corporation, the proliferation of terms of use means that a large company is likely agreeing to dozens or even hundreds of different contracts every day, merely by using the Internet. And because no one ever reads those terms of use, those multiple contracts are likely to have a variety of different terms that create obligations inconsistent with each other and with the company’s own terms of use. ‘

Crikey today is reporting that:

In a move thought to be unprecedented in global sport, photographers from international news agencies like Reuters, AFP, AP and Getty Images have been locked out of AFL games for season 2007. Their work has been replaced by an agency created by the AFL to manage the League’s press photography. Geoff Slattery Publishing, publishers of the AFL Record, has the contract to manage AFL photography. But the scheme has raised serious questions about press freedom and the right of news organisations to report on public events.

So this is bad, I’d agree, for all kinds of reasons that Crikey explores. But all I can think is – what a great opportunity for amateur photographers to take and sell photos to the press! Citizen journalists unite.

UPDATE:Crikey have another story about the AFL move today – which points out attempts by others – in particular, FIFA – to do something similar. Apparently, so far attempts to do this kind of thing have led only to tears (and rapid backdowns). I await the next development…

And another thing, about the November government draft of a new law for internet censorship (see my previous comments here and Pete Black’s comments here).

One thing that is fundamentally wrong with the government approach is the ‘cover everything, create specific exemptions’ approach. The government proceeds by creating a default position that everyone doing anything online (even vaguely related to commercial life) is covered, and then creates a long list of exemptions so that certain kinds of sites are free from regulation.

Three serious problems with this approach:

  1. The obvious problem: new kinds of sites are automatically censored. Since we don’t know what might happen online next, why make the default regulation? Why not single out the specific things you want to cover?
  2. The ‘bob each way’ approach: for most exempt categories, the definition states that the site must fit the definition AND ‘comply with other requirements in the regulations’. This would enable the government at any time to impose additional requirements on, say, user-generated sites or search engines – by regulations, which can only be DISALLOWED, not amended, by Parliament. Ick.
  3. Lawyers’ paradise. I foresee many arguments by people saying they fit within categories. That’s what always happens when you have a specific list. Again, ick.

Oh, and here’s a question. do you think massive multiplayer online games are covered by this regime?

Ah, censorship. What is it about censorship that brings out the silliness in legislators? Why is it that the idea of censoring the Internet gets people so excited they forget to work out whether the laws are at all sensible?

Crikey has today leaked a November draft proposed Australian Internet censorship law: the Communications Legislation Amendment (Content Services) Bill 2006. I’ve had a look. It’s unbelievable.

Crikey report that the bill has been redrafted. It had better be. Better still would be to forget it altogether. Because this draft doesn’t pass the laugh test. Really. It is inconsistent with fundamental values like freedom of speech and freedom of information; it is broad, draconian, and wouldn’t work, it is completely out of step with the way the Internet works (it seems to require pre-emptive monitoring of content by hosts before it even goes online). I think I’m back in the year 2000 – the last time this same government tried to write an Internet censorship law. More on why this draft is so bad over the fold. [update: Pete Black has also commented, along very similar lines to me, here]

Interesting story hitting the press today on the use of Australia’s notice-and-takedown provisions under the Copyright Regulations.

Volunteer-type hosting service had to take down this site (now on an overseas mirror), after getting a letter from the NSW Minerals Council, alleging infringement of their copyright in the material on this website. More detail on indymedia.

Apparently, despite the requirements under the Copyright Regulations to “insert sufficient information to enable the carriage service provider to identify the copyright material in respect of which the infringement is claimed”, the lawyer letter didn’t attempt to actually state what copyright existed in – telling the ISP to do the identification:

“Content in which our client owns copyright may be viewed on it’s website, We ask that you compare our client’s website to the offending websites referred to above. On comparison, you will see the copyright infringement issues that our client has with the abovementioned websites.”

I’m troubled by this, and not just because I’m pretty sure it is NOT the intention of the regulations that lawyers who write these notices outsource the identification of copyright material to the host or ISP. (“Look at the website”??? please).

I’m concerned because this isn’t one of those cases that notice-and-takedown was meant to be provided for: cases, basically, where someone has put up shamelessly infringing material online with no apparent social benefit. The notice here is aimed at some speech which is pretty clearly political, something which at least arguably would be protected under fair dealing defences of criticism and review and/or parody/satire. This is not why the Safe Harbours were put in there, and arguably, it’s an abuse of the process.

Maybe we need an Australian version of Chilling to track this kind of thing.

UPDATE: Rising Tide, the people behind the website, have issued a counter-notice. Their press release is here.

UPDATE 2: Pete Black has commented. Note also that if you’re a barrister looking for something to do with your time, RisingTide are looking for some pro bono assistance…

Not before time, the UK has opened up the UK Statute Law Database (SLD) – the official revised edition of the primary legislation of the United Kingdom – for free, public use. This will be really useful: I’ve always hated trying to find UK legislation, and thought they really needed a proper AustLII. Hat tip: Boing Boing.

Various reactions to the linking is authorisation’ Cooper decision handed down yesterday by the Full Federal Court:

  1. I commented yesterday (summary? ‘troubling’. ‘Have we, or have we not just had a very extended debate about copyright law in Australia? Was not one of the memes in that debate the idea that copyright ought to ‘work’ in a digital environment? Are not search engines, and links, fundamental to the way the Internet and digital environment work? Did all this debate completely pass the members of the court by?’)
  2. Techdirt have commented (‘the idea that it’s the technology creator’s job to build in protections against infringement in how they design a tool is also extremely problematic in placing the burden on the technology makers. It’s a guaranteed recipe for slowing down innovation by putting in place both chilling effects against innovation and additional development costs’)
  3. Boing Boing comments here (‘If that precedent were adopted worldwide, there would be no Google, no Wikipedia, no internet as we know it’)
  4. Black comments here (‘I agree with Kim’)
  5. The Age has the story here.

As you can see, the tenor of this commentary is – ‘shock horror Australian law says linking is infringement; Google’s in trouble’.

Take a deep breath. It’s important to appreciate the limitations of this decision. (more…)

As I anticipated on Friday, and noted earlier today: the Full Federal Court judgment in the Cooper case has been handed down. This is a significant, appeal judgment on the scope of secondary liability in copyright law: that is, when can one person be responsible for the infringing activities of another?

In this case, the Full Federal Court had to consider whether a website, structured and designed both to provide links to infringing MP3 files, and to provide facilities for the easy, automatic upload of such links, could lead to liability for authorising infringement of copyright for the website designer (Cooper), and the hosting ISP (E-Talk) (the website itself, now down, can still be seen (though not used) via the Internet Archive Way Back Machine (the URL was To be completely clear, Cooper was not hosting infringing mp3s. But his website did provide easy access and a central point for placing links.

At first instance, Tamberlin J held both liable – leading to much commentary, particularly on the breadth of the Australian concept of authorisation. If you’re interested in where Australian law on secondary liability for copyright infringement lay prior to this judgment, and how it compares to US concepts, have a read of this article by copyright leading lights Sam Ricketson (australia) and Jane Ginsburg (US).

Summary: in this judgment, the Full Federal Court has pretty much affirmed the reasoning of the Trial Judge. Overall, I find the reasoning pretty troubling in this case: particularly the reasoning of Branson J, which seems to me to endorse a broader view of appropriate liability than the other judgment of Kenny J. I think the judgment shows three things:

  1. That Australian law is out on its own in terms of potential liability for authorisation of copyright infringement. The law is certainly broader – that is, the scope of activities that will potentially lead to liability is wider – than equivalent concepts in the UK (as illustrated in cases like the Amstrad case) or Canada (as illustrated by cases like CCH). And, as Ricketson and Ginsburg point out, it is broader, even, than US law post-Grokster. Anything that would be caught by post-Grokster inducement liability would also be caught by Australian authorisation liability – and then some.
  2. More broadly, the case illustrates that Australian copyright law is increasingly becoming a strange, independent beast. The judgments in this case are truly remarkable for their lack of reference to, or engagement with, recent overseas authority or legal developments. Just remarkable.
  3. Most remarkably to anyone outside that arcane society of the High Priests and Initiates of Copyright: linking to another website that carries an infringing file does carry some legal risk under the reasoning in this case.

Over the fold, I have some more detail. But let me give you a flavour of what I think. As I read the judgment, quite honestly, I was amazed by the absence of any explicit conscious engagement with the real world. To read this judgment – as I said, particularly the broader one of Branson J – you could be forgive for wondering how much the honourable members of the court actually use the Internet. It’s not way the law is described, it is the fact that the judgments can make comments about the potential liability of a website operator for copyright infringement for the most mundane acts – like, oh – linking to another website – without any acknowledgment that that might be an issue, or a problem, or an even slightly undesirable development in the law. (more…)

Judgments (2 of them) are here.
Helpdesk employee wins; Cooper and the ISP lose.
More when I’ve read it.
Hat tip: Starkoff again, naturally.

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