LawFont.com

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…)

Sorry about the outage – had some technical problems for much of today. Lawfont is back and should be fine now (touch wood)… .

Google turned 10 last week, to Microsoft’s 33.

There’s a little comparison of Google and Microsoft here. Both the comparison and the comments it received are interesting.

For one, although both giants in their fields, can the two companies really be compared?

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.

On Monday Susanne noted that ACMA had released their internet content filtering report. Well, as you can imagine, there’s been some blogospheric and professional reaction:

1. SAGE (the Sysadmin Guild of Australia) has slammed the artificiality of the methodology used (press release, media report);
2. Somebodythinkofthechildren has produced a great summary set of links to other reactions, here (hat tip: Peter Black).

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…)

On 28 July, the Australian Communications and Media Authority released its report which sets out the findings of the closed environment testing of ISP-level filters conducted in 2008. The Closed Environment testing report followed hot on the heels of the Developments in Internet Filtering Technologies and Other Measures for Promoting Online Safety report released in February 2008. The latest report shows that the filtering technology has definitely improved in terms of the accuracy of what it blocks and the impact it has on network performance since the NetAlert Ltd trial conducted in 2005. The conclusion, though, is that the filtering technology has not developed sufficiently to be able to tell the difference between legal and illegal and/or inappropriate content carried via non-web protocols (such as peer-to-peer and instant messaging).

It’s always exciting to have a new Chief Justice of the High Court. Hearty congratulations of course to the CJ-elect, Robert French.

If this speech on IP is anything to go by – well, I suspect Inchoate is going to have plenty of material for his ‘High Court transcript funnies’ into the future. (hat tip: Emma Page Campbell and the Trade Marks Law Blog)

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.

From a contributor:

So I was walking down Martin Place at 5pm on Monday night. A group of about 10-15 pilgrims were having their photos taken. Most were standing or sitting on top of the military memorial, happily shouting out and whooping it up. Normally I would politely ask people doing this to step off the memorial out of respect for the people it commemorates (soldiers who died in their service to the country).

But I didn’t, because I was worried I might be accused of “annoying” them and getting arrested.

Is this a chilling effect or what?

The relevant rule is in the World Youth Day Regulation 2008, specifically reg 7(1)(b):

7 Control of conduct within World Youth Day declared areas

(1) An authorised person may direct a person within a World Youth Day declared area to cease engaging in conduct that:

• (a) is a risk to the safety of the person or others, or
• (b) causes annoyance or inconvenience to participants in a World Youth Day event, or
• (c) obstructs a World Youth Day event.

(2) A person must not, without reasonable excuse, fail to comply with a direction given to the person under subclause (1).

Maximum penalty: 50 penalty units.

(3) A person is not guilty of an offence under this clause unless it is established that the authorised person warned the person that a failure to comply with the direction is an offence.

(4) In this clause, authorised person means:

• (a) a police officer, or
• (b) a member of an SES unit (within the meaning of the State Emergency Service Act 1989) or a member of the NSW Rural Fire Service, but only if the member is authorised by the Authority in writing for the purposes of this clause.

So even assuming that the conduct can be classed as “annoying”, it first looks like they need to be “participants in a World Youth Day event”. This is defined in the principal act (World Youth Day Act 2006) as follows: “World Youth Day event means any event determined by the Authority to be an event associated with World Youth Day 2008.” A private lark looks like it might not qualify.

Next, you need to be directed to “cease” engaging in the conduct, by a police officer or authorised member, and they must “warn[ ]” you “that a failure to comply with the direction is an offence”.

Finally, you have to “fail to comply with” that direction “without reasonable excuse”. If you’ve already said your piece and moved on, then this might not apply.

But, once the section bites, it can bite hard: the maximum penalty is 50 penalty units, which is $5,500. (Note that a lower penalty may be awarded.)

To give some context, this is the same maximum penalty as:

• * impersonating, or falsely representing to be an authorised building inspector: sec 86 of the Building Professionals Act 2005
• * a casino operating free liquor as an inducement to gamble in the casino: reg 23, Casino Control Regulation 2001
• * advertising that you are a chiropractor when you are not registered: sec 7, Chiropractors Act 2001
• * failing to notify the Commissioner of Police in writing within 14 days if your genuine or legitimate reason for owning a firearm is no longer valid: reg 14, Firearms Regulation 2006

UPDATED:

The Full Federal Court has just declared reg 7(1)(b) “invalid to the extent that it seeks to prevent merely annoying conduct”: see Evans v State of New South Wales.

The key passages are:

83 In our opinion the conduct regulated by cl 7(1)(b) so far as it relates to “annoyance” may extend to expressions of opinion which neither disrupt nor interfere with the freedoms of others, nor are objectively offensive in the sense traditionally used in State criminal statutes. Breach of this provision as drafted affects freedom of speech in a way that, in our opinion, is not supported by the statutory power conferred by s 58 properly construed. Moreover there is no intelligible boundary within which the “causes annoyance” limb of s 7 can be read down to save it as a valid expression of the regulating power.

and

88 For the preceding reasons, the Court will make a declaration that cl 7(1)(b) is invalid to the extent to which it is applied to conduct which causes annoyance to participants in World Youth Day events. There is otherwise in cl 7 a substantial measure of protection against disruptive behaviour, behaviour which causes inconvenience to participants and behaviour which may give rise to a risk to public safety. Over and above these provisions the general criminal laws of the State relating to disorderly and offensive conduct and the like are able to be invoked should that be necessary.

Note that, to the extent the regulation prohibits causing “inconvenience”, it remains valid:

84 … While the term is broad it does not depend upon the subjective reactions of participants in World Youth Day events to the conduct in question. It requires a judgment by the authorised person of objective inconvenience. Such inconvenience may arise, for example, where protestors by their locations or actions hinder or obstruct the movement of participants or are so loud in their protest as to impair communications between groups of participants and officials. The term “inconvenience” may be criticised as conferring wide powers of uncertain ambit upon authorised persons but it is, in our opinion, a term which can reasonably be construed as limited to matters susceptible of objective judgment. The term does not reach so far as to impair expression of opinions with which people might disagree or which they might find troubling. In our opinion that aspect of cl 7(1)(b) does not spell invalidity.