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We’ve been expecting this might happen for a while. Now it has. From the Australian Federation Against Copyright Theft media release:

“Today, seven leading film companies and their affiliates and licensees filed a legal action against iiNet, a major Australian internet service provider. The action was filed by Village Roadshow, Universal Pictures, Warner Bros Entertainment, Paramount Pictures, Sony Pictures Entertainment, Twentieth Century Fox Film Corporation, Disney Enterprises, Inc. and the Seven Network, the Australian licensee of some of the infringed works. The companies seek a ruling that iiNet infringed copyright by failing to take reasonable steps, including enforcing its own terms and conditions, to prevent known unauthorised use of copies of the companies’ films and TV programs by iiNet’s customers via its network.”

In other words, it’s the argument that an ISP is authorising infringement of copyright. Without seeing the statement of claim, can’t say much more, except this: this is the next ‘upping of the ante’: designed, no doubt, to increase the pressure on ISPs and the Internet Industry Association to negotiate on the so-called ‘three strikes’ proposal for a system for terminating internet access of alleged copyright infringers.

Interesting times. (and yes, I’d love more information if anyone has any…).

On 3 October, Australian Arts Minister Peter Garrett announced that the Australian Federal Government plans to introduce a resale royalty right for works of visual art by 1 July 2009. This right will ensure that visual artists receive a portion of the proceeds from resales of their works. The legislation establishing the resale royalty right scheme has not yet been introduced in Parliament, but is expected bythe end of 2008.

The Government has issued a fact sheet on how the right would be structured. In short, the resale royalty scheme would involve a mandatory five per cent artist’s royalty on resales of artworks, when works are sold for $1,000 or more. The right will apply to works by living artists and for a period of 70 years after the artist’s death. (more…)

You heard it first … everywhere else. I know. House of Commons has reported it, as have assiduous commenters on this blog.

But for those who didn’t know: IceTV has been granted special leave. More commentary from House of Commons here. My previous commentary here and here; Bill Patry here. For my money, read David Lindsay’s slides from a presentation he gave on the case for the Copyright Society (click on ‘Download Powerpoints’ – immediately below the heading on that page): no one has done the work like he has. Oh, and don’t forget Peter Vogel – one of the men at the centre of the storm.

Fun, fun, fun.

Update: the High Court transcript from the special leave hearing is available here. It makes for some very interesting reading.

So CAL has had a win in the High Court. In Copyright Agency Limited vs The State of NSW [2008] HCA 35, a unanimous High Court overturned the Full Federal Court’s ruling that Lands and Property Information (formerly the Land Titles Office), part of the NSW Department of Lands, does not have an implied license extending to allow the LPI to scan copies of survey plans, lodged with the office as a necessary element in registering title to land, and pass copies on to LPI staff, government agencies, councils, relevant authorities, information brokers and members of the public. One thing we don’t yet know is how much the NSW government will have to pay. The use will still fall within the government’s statutory license (Div ) – which means the government can make the copies but must pay equitable remuneration, to be determined by the Copyright Tribunal. This judgment presumably means the matter goes back to the Tribunal for determination.

[UPDATE: Catherine Bond has two long and interesting posts at House of Commons: Part 1 (Can’t the government just legislate to allow them to do it free?), Part 2 (but the Constitution!). Inchoate responds here.Nick Gruen has an AFR op-ed, which is re-produced on Club Troppo here – referring to Fitzgerald’s and Anderson’s (pre-High Court decision) article here.]

On one view, this is copyright run a little mad. (more…)

The Internet Industry Association, CHOICE (the Australian Consumers’ Association), the Australian Library and Information Association (ALIA) and Australian Digital Alliance (ADA) have today expressed their concern about the possible contents of the ACTA negotiations that I’ve discussed a few times (most recently here). They have also agreed a set of six principles which, in their view, should guide the Australian approach to the negotiations:

1. Transparency and accountability (all stakeholders should see and comment on text before it is concluded)
2. Presumption of innocence (no enforcement, civil or criminal, without independent findings of infringement)
3. Proportionality (all enforcement measures to be proportionate to the seriousness of any infringement)
4. Consideration of impact on other treaties and laws (no doubling up or inconsistency with Australia’s existing obligations)
5. Avoiding the prescription of surveillance technologies for IP enforcement
6. Safeguards against liability for intermediaries (such as educational
   institutions, libraries and Internet Service Providers)

More detail in the principles document, which can be downloaded from the IIA or ADA.

Press releases:

1. IIA
2. Australian Digital Alliance
3. CHOICE

Note: I am a member of the board of the ADA.

Just have to alert you to this upcoming event: Bill Patry is speaking on copyright in Australia in August. It’s not that often we have speakers here in Australia on copyright with such an amazing range of credentials: formerly copyright counsel to the U.S. House of Representatives, Committee on the Judiciary, formerly Policy Planning Advisor to the Register of Copyrights, formerly Law Professor, Benjamin N. Cardozo School of Law; author of numerous treatises and articles (including one on fair use with Judge Richard Posner), including the new multiple-volume treatise on “Patry on Copyright” – and now Senior Copyright Counsel, Google Inc. Also the author of the Patry Copyright Blog, a personal favourite.

According to his blog, Patry is going to be in Melbourne on 8/20, Canberra 8/21, and Sydney on 8/22. Details here (it seems like the Canberra one isn’t being mentioned at the moment on the Thomson site – my guess would be it might re-appear if enough people get in touch with them….).

Coverage of a previous Patry presentation (in London) here.

More detail has now emerged on ‘three-strikes’ developments in the UK. ‘Three strikes’ refers to proposals currently doing the rounds – heavily pushed by various IP rights-owning organisations – to have ISPs monitor online copyright infringement (particularly P2P), warn users, and, if infringement persists, impose sanctions such as termination of service. The French have been drafting up such a scheme, it’s being pushed elsewhere (including here in Australia) and yesterday there were two significant developments in the UK:

1. The UK government announced a voluntary ‘Memorandum of Understanding’ between six UK ISPs and BPI (music industry body) and the Motion Picture Association; and
2. The UK Department for Business Enterprise and Regulatory Reform launched a consultation on ‘legislative options to address illicit Peer-to-Peer (P2P) File-Sharing.

There is already some online commentary: see Pangloss and the Open Rights Group [update: IAM Blog also has some commentary, as does IP Watch]. Some thoughts of my own over the fold. (more…)

A group of European IP Professors have drafted a Declaration, available from the Max Planck Institute, which offers ‘a balanced interpretation of the “three step test” in copyright law’.

The Three Step Test is a provision found in various treaties on IP and particularly copyright – the Berne Convention, TRIPs, and the Australia-US Free Trade Agreement. It states that countries are allowed to introduce exceptions to copyright law, provided those exceptions are confined to ‘certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the right holder’.

The initial declaration was a collaborative effort, and it has been signed by a long list of specialists, including some names generally considered authoritative.

Part of the point of the Declaration is to offer an alternative to some of the more narrow views taken of the test thus far, including some court and tribunal decisions on the test. These narrow views tend to be put forward to limit the extent to which governments can protect users’ rights and interests when drafting (or extending) copyright law.

At the heart of the declaration is the view that the test is not a series of hurdles that users must overcome, but an “indivisible entirety”, in which “the three steps are to be considered together and as a whole in a comprehensive overall assessment”, and that the test allows policymakers to base the need for an exception on important competing considerations – particularly interests derived from human rights and fundamental freedoms, interests in competition, and other public interests such as scientific progress, and cultural, social and economic development. The declaration also usefully highlights the distinction between original rightsholders (creators) and subsequent rightsholders (distributors and commercialisers) – both of whom are important but both of whom have interests that are not always congruent.

This Declaration is worthy of attention. As a collective group, the people who have drafted it, and those who have advised on its content, and those who have signed it, comprise a group of highly experienced, and authoritative, commentators on copyright law, including international copyright law. While different views exist, this perspective is a legitimate one which may be useful to policymakers who want to protect the public interest and currently feel constrained to take a narrow view. In fact, it would be helpful if some in Australian policy circles were to pay attention to it, since it does seem, at times, that policymakers are ‘spooked’ by a narrow view of the test, into failing to protect the public interest when drafting ever-stricter copyright laws.

Update
Worth passing on the fact that Jonathan Griffiths, one of the drafters, has indicated that he’s happy to answer any questions about the declaration (his contact details here). I should also have emphasised that the drafters are seeking further signatures from those who support the sentiments/interpretation outlined in the Declaration (sign up here).

Important Links:
Download the PDF of the Declaration and accompanying statement here.
Visit the Max Planck site here.
Bill Patry has commented here.
The Drafters:

1. Christophe Geiger
2. Reto M. Hilty
3. Jonathan Griffiths
4. Uma Suthersanen

This is a brief, excellent statement on why copyright term extension is a bad idea, written by a very authoritative, and not-at-all-radical-lefty-commie-pinko, law professors.

As an Australian, I read it with interest, and some sadness – we are already protecting the ‘record companies, ageing rock stars or, increasingly, artists’ estates’ via a term extension agreed to in the US-Australia FTA.

The Times today is reporting that ‘[p]arents whose children download music and films illegally will be blacklisted and have their internet access curbed under government reforms to fight online piracy’. According to the report:

The measures, the first of their kind in the world, will be announced today by Baroness Vadera, who brokered the deal between internet service providers and Ofcom, the telecoms body…Britain’s six biggest service providers – BT, Virgin Media, Orange, Tiscali, BSkyB and Carphone Warehouse – have signed up to the scheme. In return, the Government has abandoned a controversial proposal to disconnect broadband services for users who had been caught out three times.

The scheme will, apparently, involve:

1. warning letters
2. sanctions – including “traffic management”, meaning a sudden curtailment of their internet speeds, and “traffic filtering”, a careful monitoring of the media files downloaded to an account to check whether they have paid for them.

The scheme does not, apparently, involve the passing on of personal information – BPI and copyright holders will not be given names.

I’m not sure what to think about that – on the one hand, it does get rid of some of the nastier aspects of some of the proposals that have been floating around (like termination of internet service, blacklisting and people being cut off for 12 months). On the other hand, and subject to seeing the details, it does seem to have all the problems of identifying the culprit, collective punishment, transgression of the presumption of innocence, and the imposition of sanctions without court review (see my previous comments here). It also doesn’t appear to be compulsory (in that not all the ISPs have ‘signed up’). Will await details with interest.

On further thought, I’m less and less comfortable with this. Maybe it’s those words – ‘management’, and ‘filtering’. We are, in effect, talking about the ‘management’ – and curtailing – of a fundamentally important communications medium, for the benefit of a particular industry, and with all the dangers that follow of doing exactly the same thing for other industries and interests. All to be done, it would appear, outside any finding by an independent, disinterested tribunal or court that there has in fact been mass infringement of a kind that would justify such a sanction. Yeah, my gut reaction is I don’t like it. In the end, there are important principles at stake here and they appear to be negotiated away by this deal. And I don’t think this is an end to it. But that’s just my view.

Knowledge Ecology International has published a list of proposals which they say are “the substantive suggestions for provisions of the ACTA that the RIAA [Recording Industry Association of America] sent to the USTR [US Trade Representative] on March 17, 2008″.

The wish list makes for very interesting/scary reading for those interested in what the next generation of bi- or multi-lateral treaties in IP might look like. Of particular interest are the following suggestions relating to secondary liability (liability of intermediaries for copyright infringement): (more…)

As IPRoo notes, on 18 June 2008 the Federal Court (Weinberg J) handed down yet another decision in the recent spate of Australian copyright cases regarding copyright in the plans for project homes: Inform Designs and Construction Pty Ltd v Boutique Homes Melbourne Pty Ltd [2008] FCA 912. One can’t help but wonder whether there isn’t some kind of guerrilla war going on in the project homes industry at the moment, that war is being waged not only through prices, but through the indirect means of copyright litigation.

Anyway. The interesting thing about this case is that, unlike other recent cases, in this case the alleged infringer actually won – they were held not to have infringed.

The secret, it seems, is keeping drafts. Lots of them. In fact, if there is a ‘moral’ to the Inform v Boutique case, it is that: keep your drafts. This is because the secret to winning, if this case is any guide, seems to be convincing the court that despite whatever similarities might appear between your houses and your competitor’s houses, you did in fact come up with the designs independently. That may sound obvious, but actually, in these cases, it is not. (more…)

Simon Rumble expresses concern that the ruling in IceTV may be far-reaching indeed:

To my non-lawyerly eyes, this judgement seems rather far-ranging. It seems that basically any collection of data can now be covered by copyright, no matter how you recreate it. …

For example, let’s say I wanted to set up a web site that allows people to compare phone plans. I use publicly-available information about the various suppliers’ pricing to build a database that is looked up to recommend a specific plan from a specific provider. This would now seem to be a breach of copyright. I work with people who design phone plans, and I can tell you it’s a very creative process — though perhaps not for the right reasons.

My response to that would be – not necessarily. Actually, the cases where people have tried to use copyright to prevent this kind of ‘comparison’ site go way back to the early days of the Internet. In the US, they tend to fail on ‘fair use’. In Australia, we don’t have fair use, but I think there are at least two safety valves that mean this isn’t going to be infringement:

1. First, you may not end up copying enough to be infringing copyright. Let’s say there’s a whole mobile phone plan. Let’s say you extract a few key items: price of phone, price per minute, connection fees, timing. That’s a whole lot less than the whole plan. Whichever way you look at it, you always have to copy a substantial part of the copyright work to infringe. In the IceTV case, the copyright work was the whole weekly schedule. I think the court’s assessment of whether a substantial part was taken is open to question in IceTV, but the phone case is another case, that would be assessed on its own facts. There’d be serious doubts whether you copy enough;
2. Second, even if you did copy enough, there’s a fair dealing defence for ‘criticism and review’. If you are specifically reviewing the various phone plans, with a view to making a recommendation on which are the best – I think you’re criticising and reviewing. Sure, you’re not reviewing the literary merits, but that’s not necessary, as a long line of copyright cases establishes.

So don’t start panicking yet.

House of Commons reports that one of the items in the budget was money to be spent establishing an artist resale royalty scheme. This should make organisations like the National Association for the Visual Arts happy (oh look it did), and the Australian Copyright Council, but the idea does have plenty of critics, and a recent report on the newly-introduced UK scheme was hardly enthusiastic. Here’s hoping they can do it in a way that doesn’t just increase bureaucracy without benefit to actual artists.

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.