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Australian reality television show Big Brother has sparked a debate on the regulation of Internet content. Earlier this month (see here and here), an alleged case of sexual assault caused two contestants to be taken off the reality television show. (See “2006 sexual assault controversy” on Wikipedia’s Big Brother entry for further details.) While the behaviour was not broadcast on television, it was shown live on the show’s Internet feed, provoking outrage from politicians, and causing Communications Minister Senator Helen Coonan to issue media releases addressing the incident (2 July and 3 July).

I’m not going to weigh in on the appropriateness of content broadcast on reality shows or on the Internet, or the ethics of such shows generally, nor will I discuss whether certain conduct actually occurred on the Big Brother set. Plenty of that is being offered, from Opposition Senator Stephen Conroy (3 July and 5 July) to Germaine Greer. Instead, I’m going to consider why the content shown on the Big Brother website did not break any laws, and discuss the contemplated regulatory response. (more…)

About a month and a half ago – on 14 May – the Attorney-General issued a press release, announcing proposed new exceptions to copyright: the outcome of a long review that commenced approximately 12 months before (by the way, check out the text in the URL on that last link – it’s deliciously ironic).

I know that the press release was some time ago, and I know, too, that the draft legislation is not out yet. But I’ve been thinking about the press release a bit, lately, and in particular, the way it would seem to indicate that this exception will look. I thought I’d share some of those thoughts. (for other thoughts, see the Australian Copyright Council’s response, posted here). (more…)

Yahoo reports that the US Supreme Court refused to hear an appeal by AA Milne’s granddaughter Clare to cancel a licence to the Winnie the Pooh characters from the estate of a long-time licensee so she could license them to Disney.

According to a scanned article on the website of the licensee’s lawyer’s firm, Disney was a co-plaintiff of Clare Milne’s at trial, but did not join the appeal. The estate of the licensee, Stephen Slesinger, won both the trial and appeal to the Ninth Circuit Court of Appeals from which Milne unsuccessfully sought certiorari. (more…)

Australia is not the only nation to be rethinking its media ownership laws — the United States Federal Communications Commission is also considering whether to lift the current restrictions on ownership of a newspaper and a radio or television station in the same market. (more…)

The Do Not Call Register legislation (previously noted on LawFont) was today passed in the Senate. There is no word on its date of commencement (and nothing on Senator Coonan’s home page yet either, although there is a release about government subsidising of internet porn filters that I noted noted the other day). Edited to update: ACMA now has a press release online stating that the register “is expected to be up and running in 2007”, and Senator Coonan also has a release stating that she “look[s] forward to being able to announce the start of the Register in early 2007”.

The text of the bill is also available online, and it looks to carry on the tradition of over-drafted and over-complex legislation. (more…)

IPLaw360 reports on a lawsuit by a Stanford researcher against the estate of James Joyce to use material to supplement a book she has written about the author.

According to the story, the researcher, Professor Carol Shloss, removed material from her 2003 book about the Irish author and his daughter in response to threats of a copyright infringement lawsuit by the estate. She is now suing in the Federal Court for the Northern District of California to obtain a declaration that posting the removed material on her website as a companion to the book would not result in copyright infringement.

Stanford’s Center for Internet and Society has a copy of the suit. There is comment on the case in The New Yorker, and it was also mentioned in a lecture given last year by Matt Rimmer.

What I wonder about is how much of this material is actually copyrighted, given that at least some of it seems to have predated (in the USA) the 1976 Copyright Act, and (in the UK) the 1956 Act. (It is not clear from the complaint when all the material complained of was created. It’s also not entirely clear whether or when copyright in material created by third parties was transferred into the estate.)

The Sydney Morning Herald is reporting that the federal Government will soon announce that it will subsidise the purchase of internet porn filters. According to the report:

the plan will include subsidies for parents who buy pornography-filtering software for home computers and an injection of funding for NetAlert, the internet safety advisory body.

There is an interesting thought piece in The Australian today about how the Australian digital broadcasting industry will be regulated relatively lightly, compared to the current analog environment.

According to journalist Mark Day, Senator Coonan has defended the current high-regulation regime as necessary because of the scarcity of analog broadcasting spectrum. But digital broadcasting does not have the same spectrum limitations. Accordingly, once the transition to digital broadcasting is complete, much of the current regulatory regime will disappear (including the anti-sihponing list, multi-channeling, and high-definition quotas). (Similarly, Senator Coonan suggested that the current regime would become “outdated” in her call for submissions on the Government’s digital media conversion. ) Where significant regulation is likely to remain is with respect to some content, particularly when that content furthers pornography or terrorism.

I found this article to be particularly interesting because of its overarching argument — namely that markets (and not regulators) are best-placed to select successful digital technologies.

Are Internet telephony companies a good investment? Perhaps not–or perhaps just not yet.

Atlanta-based law firm Motley Rice has filed a class action against Vonage, on behalf of shareholders who bought stock in the Internet telephony provider prior to its intial public offering on 24 May, and have already lost a great deal on their investment. Filed on Friday 2 June in the US District Court for the District of New Jersey, the suit alleges that investors were mislead by the company, its officers, and certain underwriters of the IPO, when they were offered shares in the company. (more…)

At lightning speed, following on a 4 April announcement, the Minister for Communications, Information Technology and the Arts, Senator Helen Coonan, has introduced Do Not Call Register legislation.

Unfortunately for small businesses, they are prohibited under the proposed legislation from joining the register. Only private individuals will be able to sign up to the Register, which will make it illegal for telemarketers to solicit them. There will be no charge for individuals wishing to be listed on the Register. Small businesses, including those run by individuals from their homes, will not be eligible. (more…)

Is linking to websites without permission against the law? Generally not. But Apple may not be so far off the mark by demanding that comedy website Something Awful remove a link posted to one of Apple’s own internal service manuals. (The service manual is posted at a third website, which was not authorised to reproduce the manual, and not Something Awful itself.)

However, as pointed out on Out-Law, the truth may be that Apple’s complaint has not put the company in a “tricky and potentially embarrassing situation.” Although in general linking does not violate copyright or other applicable laws, links to infringing material may expose the linking party to contributory copyright infringement. In other words, posting the link, while not a direct infringement of copyright, might be deemed to encourage others to infringe copyright by dowloading the infringing material (in this case, the manual). (more…)

The US Supreme Court has unanimously allowed eBay’s appeal regarding the award of injunctive relief for patent infringement, and returned the case to the District Court for further consideration. Justice Thomas wrote the opinion of the court, which was characteristically short and to the point. The Chief Justice issued a concurring opinion joined by Scalia and Ginsberg, J.J., and Justice Kennedy issued a concurring opinion joined by Stevens, Souter and Breyer, J.J.

The procedural background was as follows: MercExchange held a number of patents which it attempted unsuccessfully to license to eBay and half.com. MercExchange then sued the two for patent infringement, and succeeded. (more…)

The Attorney-General has now put up the press release on the outcomes of the Australian Copyright Law Fair Use Review. The full press release, along with a ‘FAQs for Consumers’, is available here.

My comments/analysis, posted yesterday, are here.

Update: Another document promised in the press release, the official Government response to the Digital Agenda Review Report (a report published 2 years ago, in early 2004) is now available online, from this page.

Note that according to the media release, ‘a draft exposure Bill including these and other reforms will be released in the near future to enable further consultation with stakeholders.’

The Government, in the budget, has quietly shelved proposals for a resale royalties scheme – despite recent introduction in the UK and a recent private members’ bill. The idea has gone because ‘It would bring little advantage to the majority of Australian artists whose work rarely reaches the secondary art market and would also adversely affect commercial galleries, art dealers, auction houses and investors.’ Hat tip: Warwick Rothnie.

(subtitled: Outcomes of the Fair Use Review Announced).

For the past 12 months, Australia has been going through a major review of its copyright law, and in particular, its exceptions to copyright infringement, with a view to ‘updating’ this material for the digital environment. I note that we are not the only ones: Canada are having an ongoing debate (see Michael Geist on all this), and the UK are having their Gower Review (see here).

Today, the Attorney-General has issued a press release, announcing the results of the review. As yet, the press release does not appear to be online, so I’ll summarise. In essence, the government has decided not to adopt the US ‘fair use’ system – where a broadly worded defence must be assessed on a case-by-case basis. Instead, the government will expand, and amend, existing specific exceptions in Australian law. That makes the amendments complicated, but potentially more certain.

The Attorney-General, Philip Ruddock, is characterising the reforms as:

‘…significant copyright reforms which make our laws fairer for consumers and tougher on copyright pirates.’

According to the AG:

‘These are commonsense amendments which will maintain Australia’s copyright laws as the best in the world for the benefit of our creators and other copyright owners and for hte many Australians who enjoy their creative works.’

I wonder, though. The government does appear to have caved on the issue of the ‘flexible exception’ – the ‘catch all’ provision to except uses not foreseen at the time of this legislation. In my submission, I supported such flexibility, and I’m very sorry to see it apparently not there. I wonder whether in a few years time we will be saying what Bill Cornish (not an IP radical or copyleftist, by any stretch of the imagination) said in his Clarendon Lecture:

‘With rapid technical shifts on the scale of the Internet, there must be a case for giving judges some more general power to excuse at the edges, along US lines. After all, at the centre, legislation is rapidly providing the mainstays of control. As one who tried in 1988 to persuade Parliament to introduce a concept of fair use, I feel now even mroe acutely that our failure was a major rebuff. ‘ (Bill Cornish, Intellectual Property: Omnipresent, Distracting, Irrelevant? (OUP 2004) at page 65)

The press release maintains principles which Ruddock has stated a number of times:

• 1. That copyright must keep pace with technology and rapidly changing consumer behaviour;
• 2. that ‘reasonable consumer use of technology to enjoy copyright material’ should be recognised – ‘Australian consumers should not be in a significantly worse position than consumers in similar countries’
• 3. reforms should not ‘unreasonably harm or discourage the development of new digital markets by copyright owners’
• 4. The unique Australian system should be maintained – we are not moving to US-style fair use;
• 5. the law should be updated to tackle rising copyright piracy, and to support the copyright industries.

In summary, the AG has announced:

1. 2 new private use exceptions – time-shifting and format-shifting;
2. new exceptions allowing schools, universities, libraries, and other cultural institutions to use copyright material for non-commercial purposes;
3. new exceptions for people with disabilities;
4. a new exception to allow use of copyright material for parody or satire;
5. new enforcement measures

Over the fold, I summarise the announcements, and offer some commentary. (more…)