LawFont.com

Does this site strike anyone else as, well, just a bit dodgy? “International validity for a lifetime”???

I’m very sad to hear of the death of Sir Hugh Laddie. Tributes are pouring in, of course. I’ll remember him for the 1995 Stephen Stewart lecture, “Copyright, Over-Strength, Over-Regulated, Over-Rated,” 18 E.I.PR. 253 (1996) – I read it the same year I first studied copyright, and it’s influenced my thinking ever since. His Modern Law of Copyright and Designs, too, is a constant standby when I teach: wonderful for its teasing out of the implications of rules through hypotheticals, cases, and more cases. He was a bold thinker, never cowed by IP orthodoxy (or the ECJ for that matter), and never shying away from the need for a strong, sensible IP system. He has been respected by all sides in the IP world – no mean feat in itself. He will be very much missed.

The IPKat has its own tribute; as does the IAM Blog and Howard Knopf, but for a sense of the man, you might want to look at Patry’s older post on his conversation with Sir Hugh after his decision to retire from the bench.

Update: Bill Patry’s heartfelt tribute.

ZDNet has some interesting discussion of different ISPs’ policies.

I mentioned yesterday the current debate over internet censorship in Australia. I should, at the same time, have mentioned a free event that UNSW’s Baker & McKenzie Cyberspace Law and Policy Centre is having next Thursday. Full webpage here with speakers/program/etc. Here’s the short version:

The UNSW Cyberspace Law and Policy Centre is hosting a forum to explore aspects of the Australian Government’s current Internet filtering and censorship proposals. The aim is to get beyond some of the more heated claims and counter-claims circulating at present and explore the underlying issues and constraints, hopefully giving room for various perspectives and arguments to be considered on their merits. …
Date/Time: Thursday 27 November 2008, 9:30 am for 10:00 to 2:30 pm
Location: Theatre G02, ground floor, Law Building F8, UNSW Kensington Campus, Sydney NSW
Cost: Free, but donations to help cover the cost will be accepted at the door.

As I noted yesterday, a legal action has been launched by some 34 applicants from the television and movie industry against Australian ISP iiNet, alleging that iiNet has authorised copyright infringement by failing to take (adequate) steps to prevent sharing and downloading of films and TV shows via protocols like BitTorrent. A kind little birdie has sent me a copy of the Statement of Claim, so I have a bit more info. It makes for some interesting reading.

There are a number of interesting questions at the heart of this potential case:

1. What, exactly, are ISPs required to do when they become aware that users are potentially infringing copyright? Do they have to terminate people alleged by the movie industry to be ‘repeat infringers’?
2. How much responsibility will Australian courts put on intermediaries for ‘doing something’ about copyright infringement? So far, Australian courts have been pretty ready to impose liability on people they thought were ‘profiting from copyright wrongdoing’ – Kazaa with its P2P network, or Cooper with his ‘mp3sforfree’ website and his ISP host. What about others whose nefarious or infringing purpose is not so obvious? What, in other words, of more ‘ordinary’ service providers?
3. When the legislation requires that ISPs, in order to ‘gain absolution’ or immunity from damages, should ‘adopt and reasonably implement a policy that provides for termination, in appropriate circumstances, of the accounts of repeat infringers’ – what does that really mean? Is it sufficient to terminate only those found liable for infringement? Is the court allowed to determine whether the policy is real or sufficient?

Politically, there are some equally interesting questions. Will the Internet industry respond to the lawsuit by looking for a settlement deal that goes some way towards creating the kind of ‘notice and terminate’ system that copyright owners have been pressing for? Will the government’s past approach of protecting ISPs from liability in order to further the digital economy hold? Or, has the tide turned: are we now in a climate where the courts, like the government, decide to hold ISPs to a higher standard, just as the government is trying to get ISPs to engage more actively in filtering adult content? And is this all just an attempt to promote a certain filter that purports to filter both porn and copyright infringement…?

More thoughts on the law side of things over the fold. (more…)

We’ve been expecting this might happen for a while. Now it has. From the Australian Federation Against Copyright Theft media release:

“Today, seven leading film companies and their affiliates and licensees filed a legal action against iiNet, a major Australian internet service provider. The action was filed by Village Roadshow, Universal Pictures, Warner Bros Entertainment, Paramount Pictures, Sony Pictures Entertainment, Twentieth Century Fox Film Corporation, Disney Enterprises, Inc. and the Seven Network, the Australian licensee of some of the infringed works. The companies seek a ruling that iiNet infringed copyright by failing to take reasonable steps, including enforcing its own terms and conditions, to prevent known unauthorised use of copies of the companies’ films and TV programs by iiNet’s customers via its network.”

In other words, it’s the argument that an ISP is authorising infringement of copyright. Without seeing the statement of claim, can’t say much more, except this: this is the next ‘upping of the ante’: designed, no doubt, to increase the pressure on ISPs and the Internet Industry Association to negotiate on the so-called ‘three strikes’ proposal for a system for terminating internet access of alleged copyright infringers.

Interesting times. (and yes, I’d love more information if anyone has any…).

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…)

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).

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.

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.