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The Internet and blogosphere have been rife, just recently, with a story that first emerged in The Australian. The story went under the headline: ‘Copyright makes web a turn-off’, and came with this as the rather glorious (and alarmist!) first paragraph:

‘Schools have warned they will have to turn off the internet if a move by the nation’s copyright collection society forces them to pay a fee every time a teacher instructs students to browse a website’

What on earth could be going on? Well, I admit it, I’ve been hearing about this for some time, and I really should have blogged it before now. But following comments (and ‘please explains’) from both Michael Geist, and Michael Madison, some commentary on Boing Boing, and by Warwick Rothnie, and the emergence of the story on the Linux Australia listservs, it’s definitely time to weigh in.

Is such a radical argument being made? Oh, yes. The Copyright Agency Limited (CAL), an Australian collecting society isn’t demanding that schools ‘turn off the internet’. But they ARE demanding that schools pay when students are told to look at stuff. claiming that when students are told to look at sites online, that is a remunerable activity, and hence something that should be included in calculating rates that schools pay under the statutory license. The argument is a step in the more immediate question, which relates to what questions are to be put on an electronic use survey. [updated to clarify – Monday, 6 March 2006, 5:30pm]. (more…)

I blogged briefly yesterday about the release of the TPM Inquiry Report; it’s been attracting some international interest, and you can see my previous post for links to that commentary.

I’m still trying to digest the effect of the report. But the AFR has a story today (sorry, subscription only) noting that the report may well lead to conflict with the US. And here’s the kicker: our Trade Minister is apparently meeting US trade officials in Washington DC next week to review the first 15 months of the FTA.

What’s the bet he gets a bit of a pounding on the Report? But what to do? The dictates of Australian politics, and international realpolitik may be in conflict here. (more…)

Well, it’s out. Yesterday, the House of Reps Standing Committee on Legal and Constitutional Affairs released its report on the Review of Technological Protection Measures Exceptions. This is the committee set up to examine what exceptions should be created, as Australia implements Article 17.4.7 of the AUSFTA, which requires Australia to implement stronger anti-circumvention laws, more akin to the US DMCA.

And what a report it is. It has a list of 37 recommendations, many of which are concerned with protecting user interests. More over the fold. (more…)

Attorney-General Philip Ruddock today announced the Australian Law Reform Commission (ALRC) will review Schedule 7 of the Anti­Terrorism Act (No. 2) 2005 and the provisions of Part IIA of the Crimes Act 1914. The Terms of Reference are not yet on the website, but I’ve copied them over the fold. Interesting that the terms ‘freedom of speech’ and ‘freedom of artistic expression’ don’t make their way onto the terms of reference at all, since that was part of the public debate that led to the reference. But certainly ‘any related matter’ is broad enough to cover those issues.

It’s a really tight timetable though – the press release says that the ALRC has to report by May 2006. Doesn’t the government want a real review? (more…)

Let me say that again, counterfeiting is a serious problem. The OECD think so, the Australian government think so – plenty of people think so. I think so. Counterfeiting, at least as it occurs within Australia, has no social value that I’m aware of, and has costs including (a) losses to the trade mark owner (lost sales), (b) the costs entailed by the deception of consumers, (c) indirect losses to the trade mark owner (for example, loss of reputation for quality, loss of ‘prestige’ value), (d) the costs of enforcement incurred by trade mark owners and governments alike, and (e) the ‘social losses’ – lost jobs, lost tax revenue, and lost investment in research and development that may arise as a result of the lost revenue.

I have a great deal of sympathy for trade mark owners who reach levels of desperation, and use hardball tactics, against counterfeiters, particularly ‘repeat offenders’. It must be incredibly frustrating dealing with parties that have little or no respect for the law or the orders of the court. It is clear, from various judgments by the Federal Court judges, that they too have little sympathy, in general, with counterfeiters and importers/sellers of counterfeit goods.

In this context, however, this judgment is a timely reminder to lawyers that they cannot play too hardball in dealing with counterfeiters, particularly counterfeiters who are unrepresented by lawyers themselves – even where the counterfeiter has displayed contempt for the orders of the court. (more…)

As noted in the previous post, last Friday I was in BrizVegas for the ACIPA Copyright Conference.

Naturally, I learned much. But here are two things I really didn’t know, that I should note. (more…)

So on Friday, I’m at the ACIPA Annual Copyright Extravaganza in BrizVegas, and Matt Rimmer is talking about Google and all the court cases against it. And one of the cases is that brought by Perfect 10, suing over the existence of its (nudie wimmin) images in Google’s thumbnail images as displayed in Google’s Image Search function. And I have a bit of a laugh to myself, muttering phrases to myself like ‘total try-on’, and ‘haven’t you read Kelly v Arriba-Soft?‘ Then this morning, I get an email from a reader, with the title ‘Girlie Photos Land Google in Legal Trouble’, with a link to this SMH story. So I’m figuring, try on. Indeed, I shoot back a response – without reading said story – saying ‘looks like a try-on to me’. Finally, this arvo I read the story. And, it transpires, there is an injunction. My reaction: what? Or, as Marty Schwimmer – says, ‘wow’.

Now I’ve read the case. In essence, a preliminary injunction will be ordered against Google (terms yet to be determined) against its copying, and displaying , of thumbnail images of Perfect 10’s nudie wimmin pictures.

The judgment has some amusing footnotes: footnote 4 in particular, where the court notes that Perfect 10 complained ‘thumbnail’ is a misnomer when the image may be 8 x the size of an actual human thumbnail. Oh, puh-lease. Amusement aside, however, the case is interesting – even for us Australians. I reckon most of the discussion in the blogosphere is likely to go to the ‘fair use’ issue: ie, is Google’s creation, and display, of thumbnail pictures ‘fair use’. The court said no – something I thought was pretty interesting. But actually, from an Australian perspective, perhaps even more interesting are some of the parallels with Cooper, on liability for linking to stuff. (more…)

A colleague just pointed out this new journal, Copyright, to me. It looks interesting – interdiscplinary, open access, and a commitment to publishing experiments. Blurb over the fold. (more…)

The blogosphere is alive over the last few days with reports that the RIAA are saying that format shifting copying, like copying music from a legitimately-purchased CD onto your iPod, is not fair use. This appears to be inconsistent with their previously stated position – and of course, what is interesting for us here in Australia is, what implications does this have for the Fair Use Inquiry? (more…)

ZDNet had a recent article about RIM winning a patent case in the UK. The action was unrelated to the NTP/RIM litigation, and appears to have been an action by RIM to have an InPro patent revoked, provoking InPro to countersue for infringement. (more…)

Following on my post the other day about courts ordering the release of “private” data about net usage, an interesting case in point is a decision of the Dutch Supreme Court in late November, which ordered Lycos to reveal the identity of a user of one of its websites who had anonymously posted slanderous (or potentially slanderous) allegations against a postage stamp dealer. (more…)

Rothnie very usefully notes that the Cth has released its draft legislative agenda for the Autumn sittings. On the IP front, it includes a few pieces that I had predicted back when I was crystal ball-gazing in January, plus some other stuff of general interest.

It’s worth noting that none of the IP legislation is marked for introduction and passage in the Autumn sittings (ie, none are ‘starred bills’ on this list). Though, these things can always change… Comments on the particular Bills foreshadowed over the fold. (more…)

US copyright expert William Patry (Former copyright counsel to the U.S. House of Representatives, Committee on the Judiciary; Policy Planning Advisor to the Register of Copyrights) has commented on the US Copyright Office’s orphan works proposal, which I commented on briefly last week. Prof. Patry has also written, with Justice Posner, on orphan works (get the article here). Worth noting this paragraph from Patry’s commentary:

The question in Conor Medsystems Inc v The University of British Columbia (No.2) [2006] FCA 32 (Finkelstein J) was this:

1. if you have two joint patentees
2. one of those joint patentees is a University which claims title through two people claiming to be inventors,
3. but it turns out that those people were not in fact inventors,
4. is the patent liable to revocation, on the grounds that it was not granted to the actual inventors or those claiming under them – even though the other patentee is not affected by the problem?

(more…)

There’s a story in the Australian Financial Review today (sorry, not available online) which notes some comments by the Attorney-General appearing to favour harmony on copyright exceptions, and noting that it seems ‘intrinsically unfair’ if material that would be able to be used under fair use in the US is not so freely useable here in Australia.