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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?

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.

You might remember late last year Senator Conroy, Minister for Everything Cool and Funky (otherwise known as Minister for Broadband, Communications and the Digital Economy) coming out with a suggestion that Australian ISPs should start imposing ISP-level filtering of naughty-stuff. A few Australian internet-y types discussed this at the time, notably Pete Black at Freedom to Differ, and Dale Clapperton at Defending Scoundrels.

So it’s interesting that ACMA has released a new report, entitled Developments in Internet Filtering Technologies and Other Measures for Promoting Online Safety. And you have to love the conclusion from the Executive Summary:

‘…the report highlights that as users increasingly engage with interactive internet technologies, the online risks have shifted from content risks associated with the use of static content to include communications risks associated with interaction with other users…
…At this time, filtering technologies are regarded as suited to addressing particular static content risks.’

ACMA are of course careful to say that ‘clusters of measures can be more effective in minimising risks than single initiatives’ (translation:if we do lots of stuff, then maybe some of it will work). They also note that the UK ‘CleanFeed’ system, which blocks only 1,500 sites, can be deployed at an ISP level – although it addresses only a very specific (child pornography) issue.

Overall, you would have to say that the report (at least on a brief skim) is not exactly a resounding endorsement for filtering, beyond, perhaps, a blacklist of some very specific sites (and even there there is a lack of enthusiasm). (more…)

I’ve been reading through the Australian Copyright Council‘s publication, ‘The 2006 Copyright Amendments‘ (B129v01, December 2007), and I found an interesting couple of paragraphs on parody. They discuss the ‘Fanatics Songbook‘ – a songbook produced for Australian cricket fans that took, and twisted, popular songs to make comments about Australia’s cricketers and the cricketers on opposing teams. The songbook was specifically cited in an opinion piece by the then Attorney-General, Philip Ruddock, as an example of Australia’s sense of humour, newly protected by the new parody defence to copyright infringement.

According to the Australian Copyright Council however,

‘It is doubtful … that The Fanatics’ use of the song lyrics constituted parody or satire, or was ‘fair’ in the circumstances. The purpose of using the lyrics was to support members of the Australian team and/or to taunt members of the English team. This is not parody, and it is difficult to categorise it as satire – unless, perhaps, the desire of the English team to win the match could be characterised as ‘folly’ [he he – Ed.]. The songbook reproduced some of the lyrics in full [‘Some’ of the lyrics ‘in full’? What does that mean? – Ed], without any changes, which would make it difficult to characterise the use as ‘fair’, given that the reproduction of song lyrics is an activity normally licensed by music publishers.’

So, people, whaddaya think? Is this another case of the Cabinet not understanding the effect of the laws it was approving? Or just an overly-narrow view on the part of the Australian Copyright Council? For extra bonus points, discuss the relevance of the Attorney-General’s opinion piece (published simultaneously with Parliamentary debate on the new exception) to the interpretation of section 41A with reference to ordinary principles of statutory interpretation.

All over the press today that QUT people Dale Clapperton (of Defending Scoundrels) and Stephen Coroneos have published a paper arguing that a deal that saw the iPhone locked to a single telephone network could breach competition laws.

I’m not a competition lawyer, so I’m not really in a position to assess the validity of the argument from a legal point of view. Nor am I an economist, so I’m not able to tell you whether a deal like the iPhone one would actually pose a danger for competition. But Joshua Gans is, so head on over there for his views. In a word, not impressed. Ouch.

[Image by Hawken King, licensed under CC-BY]

Look, ACMA even had a press release.

How very disappointing for me.

Several people have pointed out to me that according to the SMH, like the UK government,

[t]he Rudd Government is considering a three-strikes policy against computer users who download songs illegally.

According to the SMH,

The Government will examine new legislative proposals being unveiled in Britain this week to target people who download films and music illegally. Internet service providers (ISPs) there might be legally required to take action against users who access pirated material.
…
Communications Minister Stephen Conroy said the Government was aware of the views put by the music industry for a code of conduct for ISPs to address file-sharing by subscribers.
…
“We will also examine any UK legislation on this issue [including any three-strikes policy] with particular interest,” he said.

Now, admittedly, I’m an academic in Queensland – I’ve got no idea what is going on in Canberra. But it is worth noting that (a) it would be really weird if the Australian government did not ‘observe with interest’ what happens in the UK, (b) it would be equally weird if the Australian government did not ‘consider’ proposals put by industry, and (c) none of this is new – industry (in the form of MIPI most significantly) have been making this argument for some time (here, here.)

So I’m not presently feeling the need to spend a lot of time on this. Let’s just summarise the main problems with this approach, shall we? (more…)

Today I read a paper in the latest IP Forum Magazine on ‘Trade Mark Counterfeiting – the Australian Problem’, by Corrs partner Stephen Stern. I read it in part because just recently, Australia decided to join the negotiations on the Anti-Counterfeiting Trade Agreement (ACTA) (which I’ve discussed here and here). Stern’s article is an interesting read; some of the discussion of ‘counterfeiter techniques’ in particular was interesting. As you can imagine, given that Stephen acts for brand owners, and given the title, the article was in part a plea for movement from the government – a plea, in short, for law reform.

What struck me, however, was the vagueness of the call for reform. And in the general spray of bullets that are the kinds of reforms he discusses, I think there’s some danger of collateral damage. (more…)

Blogosphere is a-buzz with leaked news that the UK government might be considering requiring ISPs to monitor copyright infringement, and terminate repeat offenders. See Technollama, the IPKat, TechCrunch here, Boing Boing, Techdirt here, and the original Times Online here, . According to the Times:

Users suspected of wrongly downloading films or music will receive a warning e-mail for the first offence, a suspension for the second infringement and the termination of their internet contract if caught a third time, under the most likely option to emerge from discussions about the new law.

There has been a similar push in Australia by MIPI in particular; I’ve elsewhere (here and here) analysed the MIPI proposals and raised a number of questions about them (similar to the questions most of the blogosphere is raising). What I think is interesting about the UK developments is that it illustrates just how global this particular push is – looks like we have a coordinated (and more recently, more concentrated) push going on across a range of jurisdictions for a similar ‘notice and terminate’ kind of system. Here in Australia, though, it would be very ironic to see ‘Mr Broadband’ Kev Rudd legislating to switch off people’s internet contrary to presumptions of innocence and the like.

Frankly, too, it still seems like a proposal that is several years behind the trend of infringement. P2P is so, well, 10 years ago; bittorrent is used for all kinds of things (much more so than Kazaa or the like could ever claim), and the easiest way to ‘share’ copyright material is computer to computer.

Update: Open Rights Group put some of the problems well:

In most families, an internet connection is shared by the entire household – so if Dad gets the connection cut off for sharing movies online, suddenly Mum can’t run her business from home, and the kids can’t get access to the Web to do their homework. The Times estimates that there are 6 million people in the UK who share files illegally on the web. Any serious move towards disconnecting offenders is likely to play havoc with the Government’s ambition to foster an e-enabled society.

What’s more, as soon as law enforcers start snooping for IP addresses to pass on to ISPs for disconnection, hardcore filesharers will simply start using encryption to obfuscate their identities. Then they’ll develop software that makes it easy for non-technical people to do the same. And then industry will be back to square one.

Who woulda thunk it? In accordance with a requirement for review of the operation of the Copyright Amendment Act 2006 (thanks Craig!), the Attorney-General has released a new copyright issues paper – on private copying of films and photos. Hmmm. You thought we dealt with that issue in late 2006? No, the new government says. Or at least, time for a review. I’ll just quote from the media release:

Attorney-General Robert McClelland said the review was part of the Rudd Government’s commitment to open public consultation in achieving fair and effective copyright law.

“The Rudd Government wants to ensure the Copyright Act continues to balance copyright protection with user needs,” Mr McClelland said.

“We are committed to encouraging creators and copyright owners to develop new markets while also giving a fair deal to Australian consumers, and I invite all parties to make a submission in response to the issues paper.”

Sections 47J and 110AA of the Copyright Act 1968 permit photographs and films to be copied in a different format for private use, subject to particular conditions. These two sections are the focus of the review.

Mr McClelland said there was a range of views about whether the present exceptions could be expanded to allow a greater range of copying without causing significant detriment to copyright owners.

“I acknowledge digital markets are rapidly adapting and the Government will need to assess all views in deciding whether to make changes.”

The legislation which introduced the new exceptions in 2006 also provides for a review of their operation. Submissions on the issues paper will close on 29 February 2008.

The budget of DFAT has been slashed, according to this Australian report I found when catching up on some blog reading today. As Roggeveen in the Lowy Interpreter notes – cuts to overseas posts will hurt Australian interests. It seems strange to see this from a PM who is a former diplomat himself.

Why am I commenting on this? Not really legal, I know. But I was strongly reminded, by this story, of an email I got from an old friend of mine a while back. She’s a professional who moved overseas. Energetic. Interesting. Intelligent. With her permission, I reproduce the email (with country names blanked to protect the innocent!) over the fold. No assertions by me, or Roggeveen, can quite capture what these kinds of cuts mean like her story of trying to get more involved with the Australian embassy in another country. (more…)