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Late last week Justice Arnold in the UK High Court issued his judgment in Twentieth Century Fox v BT [2011] EWHC 1981 – ordering BT to block access to a website, Newzbin2 (www.newzbin.com), that was held in an earlier case to be infringing copyright on a large scale. Rick Shera and Lilian Edwards already have some interesting comments up, but I thought I’d add my 2c worth. (more…)

The Australian government’s Convergence Review Committee has released a Framing Paper and invited public submissions on what principles should guide the review over the next year.

The principles currently proposed span across broadcasting, telecommunications, and radiocommunication issues (although the bias is towards broadcasting content issues):

1. Australians should have access to a diversity of voices, views and information.
2. The communications and media market should be innovative and competitive, while still ensuring outcomes in the interest of the Australian public.
3. Australians should have access to Australian content that reflects and contributes to the development of national and cultural identity.
4. Australians should have access to news and information of relevance to their local community.
5. Communications and media services available to Australians should reflect community standards and the views and expectations of the Australian public.
6. Australians should have access to the broadest range of content across platforms and services as possible.
7. Service providers should provide the maximum transparency for consumers in how their service is delivered.
8. The government should seek to maximise the overall public benefit derived from the use of spectrum assigned for the delivery of media content and communications services.

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At an IP Academics’ conference in early February, I remember Professor Di Nicol asking, rhetorically, ‘where has all the patent reform gone?’. Di pointed out that we’d had any number of ACIP Reports, ALRC Reports (like that on Gene Patenting), and IP Australia Discussion Papers, all with no actual legislation resulting.

No more, it seems.

No doubt many are already aware of the Intellectual Property Laws Amendment (Raising the Bar) Bill. An exposure draft for this Bill was released by IP Australia was released on 3 March, with comments due by Monday next week (4 April). The provisions of the Bill have been discussed at some length elsewhere, too, including some very interesting, thorough discussion of Schedule 1 on the Patentology blog.

I have a few thoughts though, on things that haven’t been discussed much. (more…)

The TPPA – for which the US IP proposals were leaked last week – is earning a little more attention: Crikey had a good short article yesterday by Bernard Keane (subscriber only, free trial), Rick Shera in NZ has been tweeting and has given an interview; Techdirt has an article; Michael Geist has offered up a few views; KEI has an overview. update: Rick Shera has the NZ take here.

For New Zealanders, this draft is all bad news – NZ is not yet subject to a US FTA so it has, for them, all the implications AUSFTA had for Australia back in 2004 (for a detailed look, see my article with Robert Burrell, available here).

For Australians, the million dollar question is – how much of this is new for us? The answer – there’s more than you might think. Again. I’ve not had time yet to do the really detailed view, but here’s the quick list of things to pay attention to as being AUSFTA-plus: (more…)

IP Australia has released the IP Laws Amendment (Raising the Bar) Bill for public consultation. It’s huge: it covers patentability standards, a patent research exception; enforcement; oppositions – you name it, it’s in there. Written submissions due by 14 April 2011. More thoughts to come…

By now, all the copyright nerds in the world know the headlines: the Full Federal Court has handed down its decision in the iiNet case; that the appeal was dismissed in a 2:1 decision (Emmett and Nicholas JJ; Jagot J dissenting). Most people also will know that the reasoning is very, very different from the Trial Judge’s decision, and certainly contemplates, in a way that the Trial Judge didn’t, that in different factual circumstances an ISP could be liable for authorising infringement by its BitTorrenting users. The various major law firms have issued their summaries, I refer you there for an overview. Assoc Prof David Brennan from Melbourne Uni has expressed his succinct, and compelling view.

The decision is really long: it half looks like all three judges wrote as if theirs was to be the main decision (with others concurring or dissenting more briefly). A close reading reveals why. Although it is fair to say that the majority judges reach broadly the same conclusion on broadly similar grounds (namely, that the AFACT notices did not contain enough information to require action on the part of iiNet), they conceptualise the facts quite differently, and demonstrate important differences of approach. My early thoughts below the fold. This one’s for people generally familiar with the case and Australian copyright law though – beginners need to start, at least, with the law firm case notes.
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The final terms of reference for the upcoming Convergence Review to be conducted by the Australian government have been announced, following on the draft terms of reference provided for public comment in December.

At the Australian Broadcasting Summit this morning, Senator Stephen Conroy, the Minister for Broadband, Communications and the Ditital Economy, noted that the final terms of reference have been released. The focus of this review appears to be how best to regulate content that are accessible across a number of delivery platforms (television, computers, and mobile/telecommunications devices), rather than via a single means as in the past.

The terms of reference, which are now posted on the Department’s website, include:

–ensuring that the policy framework for media content and communications services is appropriate, and advising on ways of achieving it and on the potential impact of reform options on industry, consumers, and the community;
–looking at all relevant legislation and regulations implicated by the terms of reference (including, it appears, those outside of the Minister’s portfolio);
–considering both regulatory and non-regulatory measures to achieve the new framework;
–taking into account a number of issues when developing the new framework, including ensuring an innovative and effective media industry, the continued production and distribution of Australian content, developing appropriate ways to treat content that crosses international borders, and considering the appropriate ways in which radiocommunications spectrum is allocated.

Senator Conroy also remarked at the conference that the review committee will include Malcolm Long, who until recently was a member of the Australian Communications & Media Authority. Now an independent consultant, Long was also past Director of the Australian Film, Television and Radio School, and Managing Director of national broadcaster SBS, among other senior roles in the Australian media industry.

Update: The Department has announced that Glen Boreham, formerly Managing Director of IBM Australia, will be chairing the review committee. The third and final member of the committee will be announced shortly.

I noted the other day that the Attorney-General had set out the upcoming copyright reform agenda.

And then an email alert crossed my desk – an actual copyright reform, in a dedicated Bill. Australia is to get a new copyright exception! Specifically, we are to get new s 44BA, for ‘acts done in relation to certain medicine’. It’s basically an exception to allow generic medicines producers to use the officially approved “Product Information Document” originally submitted when new drugs are approved by the Therapeutic Goods Administration. The background to this amendment, according to the Explanatory Memorandum, is apparently this case, in which an originator pharmaceutical company got an interlocutory injunction, partly on the basis of an argument that copyright in the approved product information document would be infringed by the competitor’s use of the approved PI for its generic medicine.

This strikes me as perhaps one of the clearest arguments I’ve seen in a while for a fair use exception or other flexible exception in Australia. The very idea that someone has had to draft, and now the legislature has to pass, legislation to add this specific exception in is a clear indication that there just isn’t enough flexibility in the legislation. Is it just me?

Today, at a (invitation only) conference in Sydney, Australia’s Attorney-General Robert McClelland announced Australia’s copyright reform agenda for the next little while. I wasn’t there, but a transcript of the speech is here. In short, the agenda is this:

1. On the issues in iinet, the AG believes that ‘an industry dialogue on this issue is the most productive way forward’. Apparently ‘The Government will look closely at the outcomes of any industry discussions’.
2. On Australia’s Safe Harbours, the AG ‘to consult on proposals to adopt a broader definition of ‘carriage service provider’.’ to broaden the availability of these Safe Harbours. There will be a consultation paper on this soon.
3. The AG’s Department will be considering the Copyright Advisory Group’s request for an additional exception to the anti-circumvention provisions, and will ‘invite submissions seeking views on whether any other new exceptions should be included, and I again invite those affected to take this opportunity to raise their issues.’ If you want to jailbreak your iphone, or anything else for that matter, now might be the time to think about it.
4. The ALRC will likely get a reference towards the end of the year on copyright. The terms of reference will have to be written not to overlap with other work (like the convergence review) (good luck with that). At least, the ALRC is likely to look at exceptions in copyright in the context of the online environment and whether the correct balance exists’

Interesting times.

The Australian Digital Alliance will be holding a policy forum, titled “Righting the Copyright Balance”, on 4 March 2011 in Canberra. The full-day event looks to be a very interesting one, with sessions focusing on areas where Australian copyright law is thought to be most imbalanced between the rights of creators and users of copyright works.

Topics to be covered include safe harbours, the iiNet case, general exceptions, orphan works, and introducing flexibility to the Copyright Act.

LawFont’s own Kim Weatherall will provide a summary of the day’s discussion and propose an agenda for copyright reforms for the next few years.

If you are interested in attending, the deadline to RSVP is 25 February.

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.

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…?

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.