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On proposing a 95 year term for copyright in sound recordings:

“I strongly believe that copyright protection for Europe’s performers represents a moral right to control the use of their work and earn a living from their performances…” [European commissioner Charlie McCreevy; press release here]

Bill Patry today has an interesting post on the politics of the current Canadian copyright reform discussion, noting, in particular, the ‘bullying’ of the ‘International’ Intellectual Property Alliance (International in the same way as World Series Baseball, by the way, as Patry points out). Bill’s final point is, I think, a good one:

The intense, negative reaction of Canadian citizens to IIPA’s efforts is well-taken. Why any government would want to adopt approaches that have been admitted to be a dismal failure in the U.S. by the law’s own ardent author, and that are not required by the WIPO treaties is a mystery.

I think what interests me about what is going on in Canada is exactly that – the ‘intense, negative reaction’. I think, in part, this kind of intense, negative reaction is, as Patry points out, because the relevant laws have not been proven to work at all. I also think the reaction happens for reasons that Michael Geist points out in his ‘Why Copyright’ talk – it’s about the effects that harsh copyright laws can have – on creativity, on fun stuff that people like to do, on free speech; it’s about the mismatch between copyright law on the one hand, and ‘the real world’ and the possibilities of technology that we can all see on the other.

It’s worth pointing out, though, that there’s a broader geopolitical context to this. In part, the ‘intense, negative reaction’ is a reaction against the high-handed, ignorant, contemptuous attitude of the US – US industry in the form of the IIPA, and the US government in the form of the USTR – an attitude that says that unless your law looks exactly like ours, it must be inadequate – oh, and by the way, we have nothing to learn from you; your laws could not possibly be as good as ours. I think that the copyright debate – because it is one in which that attitude is taken to extremes – crystallises a more general concern about the US ‘attitude’, as illustrated in its lobbying and trade negotiations and treaty negotiations – to the rest of the world. Similarly, I think that the copyright push by US industry and government has broader geopolitical costs to the US – it is feeding anti-American sentiment. A colleague and I have outlined this in excruciating detail in a recent paper, and I’m seeing the same thing happen in Canada.

On a positive side, it’s rather good to see some US companies in Canada pushing on the other side. That might help limit the damage to US interests more generally.

Update: see also Howard Knopf.

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.

Michael Geist, the IPKat, Bill Patry and no doubt others note that the UK IP Office has issued a consultation paper on ‘Taking Forward the Gowers Review of Intellectual Property: Proposed Changes to Copyright Exceptions‘. At a cool 90 pages, it’s a big document; it’s also a very detailed one, covering potential broadened copyright exceptions for private copying (format shifting), educational uses, private research and study, libraries and archives (for preservation), and parody. Interested parties have until 8 April 2008 to respond.

From an Australian perspective, having in the last couple of years gone through something fairly similar, I think one of the most interesting things about the consultation paper is a point picked up by Patry: the ‘recognition of the conflicting needs for clear guidelines so that people can know what they may do and what they may not, and the countervailing ad hoc nature of so many determinations’. In other words, the old ‘rules/standards’ or ‘flexibility/certainty’ debate. (more…)

If you are interested in IP you may have noticed, around the traps, references to proposals for a “plurilateral anti-counterfeiting treaty”. The proposal comes out of a small group of countries – Canada, the 27-member state European Union, Japan, Korea, Mexico, New Zealand and Switzerland.

According to an IP Watch story a couple of weeks ago,

negotiations will expand upon the enforcement standards of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) and countries would be encouraged to comply with other international IPR agreements. The goal is to set a new, higher benchmark for enforcement that countries can join voluntarily.

Now, the Australian Department of Foreign Affairs and Trade has issued a Discussion Paper on whether Australia should join in negotiations. The discussion paper is available here. Be quick – submissions are due by 3 December. Apparently DFAT are interested in hearing people’s views on:

1. whether Australia should be part of such negotiations;
2. whether international standards do need to be heightened in the area, and/or whether standards in Australia need to be heightened
3. views on the kinds of provisions that should be sought/avoided/etc.

It must be Friday. All the IP stories are sports ones.

Several sites have picked up the story that the Major Baseball League is involved in a rather Major Technology Stuff-up. As Madisonian reports:

‘Apparently fans who purchased digital downloads from MLB have discovered that MLB has changed its DRM scheme. Fans who downloaded complete games from MLB had to log in through an MLB web page to verify that the download in question was being viewed on the appropriate, licensed computer. MLB has now removed this page, making those downloads unviewable. Apparently MLB does not know when the problem will be fixed. This means that those who purchased the downloads have been denied the benefits of their bargain.’

As the US sites are reporting – under US law, the fans are stuffed. Circumventing the DRM is illegal under their Copyright Act (the DMCA). And no one can sell the fans the means to access the games, because that’s illegal too.

Aren’t you proud that Australian law isn’t so silly? Here, under the Copyright Regulations 1969, we actually have a prescribed exception that allows circumvention of an access control to get access to stuff where:

(a) the technological protection measure is not operating normally; and
(b) a replacement technological protection measure is not reasonably available.

yay Australia! oh, but that’s right. STILL no one can sell you (or even provide to you for free, personally) with the means to do so. So GEEKY Australian baseball fans are ok. That must be a large group.

Oh, hang on, no. Geeky Australian baseball fans are not ok, because they might be circumventing under US law if they were to circumvent a US access control based on a US site … might depend on the technology; whether all the acts were occurring in Australia. Hmmm……

My brain hurts.

The other day I mentioned the government’s Discussion Paper reviewing the Legal Deposit Scheme. Michael Geist has pointed out to me that related debates – in particular about the relationship between legal deposit and TPMs – have occurred in Canada. So, for your further edification:

1. Michael Geist’s column on the issue;
2. The regulations
3. The LAC Guidelines

I have a chapter in a new book. The book is called TV Futures: Digital Television Policy in Australia. Further information, contents and the first chapter are available at the CMCL-Centre for Media and Communications Law, University of Melbourne. You can order the book here. You can also find an abstract of the chapter here.

With no fanfare (and I mean no fanfare: no press release at all; I found out via the Australian Copyright Council website), the Attorney-General’s Department and the Department of Communications, Information Technology and the Arts have issued a Discussion Paper on the Extension of Legal Deposit in Australia to include audio-visual materials and electronic materials.

The submission date is 11 January 2008, and the Discussion Paper is available from both the DCITA and AG’s websites.

The Legal Deposit scheme requires Australian publishers of ‘library material’ (all paper-based publications – books, sheet music, periodicals, pamphlets) to deposit copies of that material with the National Library of Australia. It doesn’t require deposit of films, sound recordings, or other materials in electronic form, including web material or e-books. (although the penalty – all of $100 – for failure to comply isn’t all that scary).

The purpose is to develop a public collection of published material, so as to preserve national heritage and provide access for research purposes. This stuff is actually quite important (particularly for people like me, but also from a policy perspective).

But of course legal deposit does become trickier when you move to electronic materials. Do we want to preserve every website? Really? Even the teenager’s blog? When? (websites change!) Maybe instead we should go for representative samples? If so, how do we judge what is ‘representative’? And how do you make stuff accessible? If it is preserved electronically, should it be made available online? To whom? On what basis? If you are a public institution responsible for this, do you depend on commercial products to continue their commercial way, and try to fill the gaps? What if the commercial publisher stops providing a service? Really, really interesting questions.

For convenience, a full list of the questions in the review is reproduced over the fold. (more…)

Apropos of a recent post, the latest edition of the Internet Law Bulletin, has an article (or perhaps, more accurately, MIPI Press Release) by Sabine Heindl (General Manager, MIPI) on the issue of suing individuals for downloading or uploading music, and MIPI’s efforts to have ISPs engage in ‘notice and disconnection’ activities. It really doesn’t add anything to the material I explored in my last post, although this paragraph highlights a fact well known to people like me or Alex Malik, perhaps less well known to the general population:

‘The Australian music industry is now in a position to notify ISPs of the IP addresses of copyright infringers, namely those making available copyright-protected music for download on their networks.’

Yes, that’s right. They can see you.

The article pushes the same line we’ve seen in the materials highlighted in my previous post: ‘ISPs should disconnect users’ when they are repeat offenders. What the article doesn’t do is answer all those questions that we still have about any such proposal: (more…)

The case we all thought ended two years ago (Grokster, on the liability of the providers of the file-sharing software) continues at lower levels, with an interesting judgment on final orders, discussed by Ed Felten, and Jason Schultz (part 1, part 2).

Big issue in the case: what kind of injunction to order. Do you order the defendant to stop all infringements using their software? Some? who decides whether the system is ‘good enough’? Clearly, the court has struggled with this issue. It decided on an order that required steps to reduce infringement, but not 100% effectiveness.

This is all sounding very, very familiar. Kazaa redux, methinks.

On the weekend, news that Trade Minister Warren Truss announced that Australia would join, as a third party, the dispute resolution brought in the WTO by the United States against China relating to enforcement of intellectual property rights.

[Update: apparently the Labor party (or at least Simon Crean) approves this decision, labelling it a ‘tentative’ step in the right direction.]

Hmmmm. Do you think this (a) a silly move; (b) a considered and sensible way to protect Australia’s interests; (c) another example of Australia doing its ‘me too’ act with the US on intellectual property law regardless of Australia’s own economic interests? Let’s have a think about this. (more…)

The Sydney Morning Herald is reporting the news that Music Industry Piracy Investigations (MIPI), the music industry’s copyright enforcement arm, is threatening that they may have to start suing individuals for copyright infringement, if ISPs don’t do what they wish, and ‘exert more control over their users’. but is this news? And is it likely? I don’t think so. But to explain why, we need some backstory.

[UPDATE]: Today’s AFR has more on MIPI’s proposals for ISP monitoring of copyright infringement: see page 40] (more…)

Regular readers would be aware that last year I took a bit of a stand on the introduction, in Australian copyright law, of an infringement scheme – that is, on the spot fines for acts of criminal copyright infringement as an alternative to prosecution (see here for the links to all my past posts).

The Attorney-General’s Department produced, earlier this year, Draft Guidelines on the operation of the scheme. The comments period on that draft has now closed, but I thought I would just note that my submission is available from my bepress site, here. For another view, see Alex Malik, here. I looked for, but could not locate, other submissions.

[UPDATE: The Cyberspace Law and Policy Centre have made a submission, available here. EFA have also made one, available here. More if I happen to find them]