Copyright

Productivity Commission on parallel imports (books)

The Productivity Commission’s report has been released:

Copyright Restrictions on the Parallel Importation of Books

Key Points

Media Release

On a quick view, now they recommend repeal after a 3 year transition period:

Whereas the Commission’s draft report had proposed a partial liberalisation of the import restrictions, following further evidence, the final report recommends their repeal, with the industry having a period of three years to adjust before the changes take effect. The report recommends that the current range of grants and other financial assistance be refined to better target the local writing and publishing that adds cultural value to Australian society.

The Commission estimates that, while Australian authors and publishers do benefit from the restrictions, overseas authors and publishers benefit by a factor of 1.5 times. In addition to the transfer from consumers to authors/publishers (including those foreigners whom we could easily free ride on), there are also other inefficiencies.

On the question of subsidies:

For the reasons set out in chapter 7, the Commission has not recommended that the assistance provided by the PIRs [that’s parallel import restrictions] be replaced by subsidies.

It has, however, recommended that current subsidies for the local books industry be reviewed ahead of the abolition of the PIRs, and that the arrangements be reviewed again five years after their repeal. These reviews will provide an opportunity to consider the appropriateness of the existing subsidies and whether they might be improved. Among other things, such reviews could examine the case for changing some of the current subsidies to more directly assist outputs that generate cultural externalities.

For the reasons set out in chapter 7, the Commission has not recommended that the
assistance provided by the PIRs be replaced by subsidies.
It has, however, recommended that current subsidies for the local books industry be
reviewed ahead of the abolition of the PIRs, and that the arrangements be reviewed
again five years after their repeal. These reviews will provide an opportunity to
consider the appropriateness of the existing subsidies and whether they might be
improved. Among other things, such reviews could examine the case for changing
some of the current subsidies to more directly assist outputs that generate cultural
externalities.

I wonder, has anyone done a study of how far the price of CDs or computer software fell after they became open markets? Speaking purely ad hoc, and unempirically, it always seems that computer programs, at least, are cheaper “over there”. Don’t have any experience with music.

Lid dip: Peter AP Clarke

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Help Help I don’t have a copyright

The State of Victoria passed regulations requiring licensed taxis to be fitted with an alarm system that played the message (and only played the message)

“Help-Help-Driver-in-Danger-Call-Police-Ph.000”

It would appear the wording of the particular message derived from Pacific.

Pacific sought licence fees in the Copyright Tribunal pursuant to the Crown Use provisions. That proceeding was adjourned pending resolution of court proceedings to determine if copyright subsisted in the text of the message.

Emmett J held it did not:

17.  Copyright is concerned with the protection of the expression of ideas and not with the protection of ideas as such. Literary work comprises more than mere ideas. Many things that have no pretensions to literary style can be the subject of copyright. A literary work may be expressed in print or writing, irrespective of the question whether the quality or style is high (See University of London Press Limited v University Tutorial Press Limited [1916] 2 Ch 601 at 608). However, there must be some work involved in its production of a literary work, in the sense that it is necessary for the author to add something of substance in the form of the expression of ideas. Whether or not what the author adds is sufficient may be a question of degree in any given case.

18.  The originality that is required concerns the expression of the idea or thought and not the inventiveness of the idea (see University of London Press Case at 608). Whilst the required skill or labour necessary for the creation of a literary work in which copyright may subsist is not large, it must not be insubstantial. For example, as a rule, a title does not involve literary composition and is not sufficiently substantial to justify claims of copyright protection. However, that does not mean that in a particular case the title may not be so extensive and of such a significant character as to attract the protection of copyright ….

Copyright is concerned with the protection of the expression of ideas and not with the protection of ideas as such. Literary work comprises more than mere ideas. Many things that have no pretensions to literary style can be the subject of copyright. A literary work may be expressed in print or writing, irrespective of the question whether the quality or style is high (See University of London Press Limited v University Tutorial Press Limited [1916] 2 Ch 601 at 608). However, there must be some work involved in its production of a literary work, in the sense that it is necessary for the author to add something of substance in the form of the expression of ideas. Whether or not what the author adds is sufficient may be a question of degree in any given case.
The originality that is required concerns the expression of the idea or thought and not the inventiveness of the idea (see University of London Press Case at 608). Whilst the required skill or labour necessary for the creation of a literary work in which copyright may subsist is not large, it must not be insubstantial. For example, as a rule, a title does not involve literary composition and is not sufficiently substantial to justify claims of copyright protection. However, that does not mean that in a particular case the title may not be so extensive and of such a significant character as to attract the protection of copyright

After setting out a list of titles/slogans in which copyright had been denied, his Honour ruled:

21.  The question presently in issue may be stated as whether a piece of writing or collection of words is to be accorded the status of literary work, having regard to the kind of skill and labour expended and the nature of copyright protection and its underlying policy. It is not correct to say that the purpose of the Copyright Act is to protect original skill and labour (see Navitaire Inc v Easyjet Airline Company Limited [2006] RPC 111 at 148-149).

22.  The Help Words are not a form of literary expression, but a setting down of several simple words in the nature of saying something in ordinary parlance. They are no more than a simple instruction. The Help Words do no more than state the obvious words for use in drawing attention to a taxi driver requiring urgent assistance. They are not words that should be afforded monopoly protection.

23.  The Help Words simply indicate a desire to convey the notion that a taxi driver in duress seeks urgent assistance. They do no more than state an idea. The expression is inseparable from the fundamental idea that is being conveyed by the words. When the expression of an idea is inseparable from its function it forms part of the idea and is not entitled to the protection of copyright (see Autodesk Inc v Dyason [1992] HCA 2; (1992) 22 IPR 163 at 172).

His Honour also noted it would be inappropriate for copyright to subsist in such a message lest a taxi driver in trouble or a passerby be found to infringe.

The decision, with respect, is entirely consistent with the approach for infringement recently declared by the High Court in IceTV but, perhaps because the State’s submissions the decision is made one were prepared and filed in October last year, there is no reference to that case.

State of Victoria v Pacific Technologies (Australia) Pty Ltd (ACN 065 199 439) (No 2) [2009] FCA 737

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What the EU Commissioner said on the Internet and Downloading

Commissioner Reding, the EU’s Commissioner for information society and media, has attracted a degree of attention planning an overhaul of internet downloading rules.

Her comments were part of a wide ranging speech on what the EU is doing and will be doing about broadband, access and …. So, what did she actually say?

After identifying access to digital content as the first of 4 priority issues, Ms Reding said:

1. My first and most important priority for Digital Europe is: To make it easier and more attractive to access digital content, wherever produced in Europe. The availability of attractive content that appeals to European viewers, listeners and readers will be decisive in driving further the take-up of high-speed broadband internet. It is therefore regrettable that we currently have an extremely polarised debate on the matter: While many right holders insist that every unauthorised download from the internet is a violation of intellectual property rights and therefore illegal or even criminal, others stress that access to the internet is a crucial fundamental right. Let me be clear on this: Both sides are right. The drama is that after long and often fruitless battles, both camps have now dug themselves in their positions, without any signs of opening from either side.
In the meantime, internet piracy appears to become more and more “sexy”, in particular for the digital natives already, the young generation of intense internet users between 16 and 24. This generation should become the foundation of our digital economy, of new innovation and new growth opportunities. However, Eurostat figures show that 60% of them have downloaded audiovisual content from the internet in the past months without paying. And 28% state that they would not be willing to pay.
These figures reveal the serious deficiencies of the present system. It is necessary to penalise those who are breaking the law. But are there really enough attractive and consumer-friendly legal offers on the market? Does our present legal system for Intellectual Property Rights really live up to the expectations of the internet generation? Have we considered all alternative options to repression? Have we really looked at the issue through the eyes of a 16 year old? Or only from the perspective of law professors who grew up in the Gutenberg Age? In my view, growing internet piracy is a vote of no-confidence in existing business models and legal solutions. It should be a wake-up call for policy-makers.
I f we do not, very quickly, make it easier and more consumer-friendly to access digital content, we could lose a whole generation as supporters of artistic creation and legal use of digital services. Economically, socially, and culturally, this would be a tragedy. It will therefore be my key priority to work, in cooperation with other Commissioners, on a simple, consumer-friendly legal framework for accessing digital content in Europe’s single market, while ensuring at the same time fair remuneration of creators. Digital Europe can only be built with content creators on board; and with the generation of digital natives as interested users and innovative consumers .

1. My first and most important priority for Digital Europe is: To make it easier and more attractive to access digital content, wherever produced in Europe. The availability of attractive content that appeals to European viewers, listeners and readers will be decisive in driving further the take-up of high-speed broadband internet. It is therefore regrettable that we currently have an extremely polarised debate on the matter: While many right holders insist that every unauthorised download from the internet is a violation of intellectual property rights and therefore illegal or even criminal, others stress that access to the internet is a crucial fundamental right. Let me be clear on this: Both sides are right. The drama is that after long and often fruitless battles, both camps have now dug themselves in their positions, without any signs of opening from either side.

In the meantime, internet piracy appears to become more and more “sexy”, in particular for the digital natives already, the young generation of intense internet users between 16 and 24. This generation should become the foundation of our digital economy, of new innovation and new growth opportunities. However, Eurostat figures show that 60% of them have downloaded audiovisual content from the internet in the past months without paying. And 28% state that they would not be willing to pay.

These figures reveal the serious deficiencies of the present system. It is necessary to penalise those who are breaking the law. But are there really enough attractive and consumer-friendly legal offers on the market? Does our present legal system for Intellectual Property Rights really live up to the expectations of the internet generation? Have we considered all alternative options to repression? Have we really looked at the issue through the eyes of a 16 year old? Or only from the perspective of law professors who grew up in the Gutenberg Age? In my view, growing internet piracy is a vote of no-confidence in existing business models and legal solutions. It should be a wake-up call for policy-makers.

I f we do not, very quickly, make it easier and more consumer-friendly to access digital content, we could lose a whole generation as supporters of artistic creation and legal use of digital services. Economically, socially, and culturally, this would be a tragedy. It will therefore be my key priority to work, in cooperation with other Commissioners, on a simple, consumer-friendly legal framework for accessing digital content in Europe’s single market, while ensuring at the same time fair remuneration of creators. Digital Europe can only be built with content creators on board; and with the generation of digital natives as interested users and innovative consumers .

She then gave 2 examples.

The first was facilitating online licensing across all 27 member states. [Why stop there? As Prof. Gans has pointed out, albeit inaccurately under the rubric of parallel imports, this is a global problem.]

The second is to create a modern set of rules to encourage the digitisation of books:

Let us be very clear: if we do not reform our European copyright rules on orphan works and libraries swiftly, digitisation and the development of attractive content offers will not take place in Europe, but on the other side of the Atlantic. Only a modern set of consumer-friendly rules will enable Europe’s content to play a strong part in the digitisation efforts that has already started all around the globe. (The Commissioner’s emphasis)

Read the full text of the Commissioner’s speech here (the downloading wars start about 80% of the way ‘down’).

The idea of looking at the issue from the eyes of 16 year olds, rather than people who grew up in the 50s and 60s, is rather Lessig-ian (watch the Ted Talk video).

Bit of a stretch, blaming the law professors though!

Meanwhile, the very same day, Euro publishers, demonstrating the “us” versus “them” mentality Commissioner Reding criticised, took the opportunity to open another front on their war against Google, linking and aggregating. Publishers’ announcement and Hamburg declaration via here.

post-publication postscript: Chris Anderson from Wired on “Free”, reviewed in NYT.

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ASCAP, AT&T and ringtones

ASCAP is suing AT&T in the USA for copyright infringements when an AT&T subscriber’s phone plays a ringtone. ASCAP is a collecting society for public performance and broadcast rights. It alleges that when the subscriber receives a phone call in, say, a restaurant and the phone plays a ringtone it is a performance in public that needs a licence.

Fred Lohman from the EFF says this claim is doomed in America. Their copyright act has §110(4) that excludes from the public performance right ‘performances made “without any purpose of direct or indirect commercial advantage.”‘

Why wouldn’t Telstra or Optus or, for that matter, Apple be liable in Australia if APRA or PPCA came calling?

We don’t have a §110(4) so, if you were in a restaurant or walking down Collins St in rush hour and your phone started playing a ringtone you had installed, you the phone owner wouldn’t be able to use Fred Lohman’s escape clause.

So could the phone company or Apple or whoever sold you the ringtone potentially be liable for authorising your infringement (if it be an infringement)? If we are still living in the world where Telstra was liable for the music on hold played by users of Telstra’s network (before the Act was changed by the Digital Agenda Act), the question doesn’t seem so fanciful?

The phone company or whoever could presumably be liable only on the basis of authorising the phone user’s conduct which would have to be infringing in itself. Now, liability for authorisation may not be a foregone conclusion; but in Cooper, the ISP was liable at least in part because it could have prevented the website even operating. Would it make a difference if the alleged authoriser just provided the phone or the ringtone?

One argument might be that if you, the subscriber, paid for and downloaded something described as a “ringtone”, there must be an implied licence. Maybe. But in an awful lot of cases, the person who can give you rights to download and store the ringtone on your phone will not have rights to license the performance right – that right will have been assigned to, you guessed it, APRA or another collecting society. Although APRA and AMCOS now seem to be “almost” the same entity.

Surely, a court would find that, although the ringtone might be heard incidentally in public by unwitting passersby or bystanders, the playing of the ringtone was really in private? Well, maybe. But then why have those exceptions in the Act for incidental uses of things like artistic works in public places (s 65) or reading or recitation of reasonable portions of published literary or dramatic works (s 45)? (At least, you wouldn’t have to pay a licence fee for the lyrics!) and making temporary copies as part of a technical process of use (s 111B)? And there is a specific statutory licence for the playing in public of sound recordings (s 108).

Maybe a court could be persuaded to look a little more liberally at whether or not a ringtone is a substantial part of the original recording? A ringtone afterall can only be 30 seconds in duration. This seems very unlikely given that 8 bars of  Colonel Bogey infringed.

Is there something wrong with the way we legislate specific exceptions for specific technological problems?

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Shameless self-promotion

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Linking should infringe?

Judge Posner (of the 7th Circuit Court of Appeals in the USA) writing extra-judicially on his blog has stirred up a maelstron in the blogosphere with a typically  thoughtful and provocative post contending that linking to websites should be copyright infringement. (At the time of writing, there are only 211 comments!)

Less contentiously (at least in terms of blogosphere reaction), Prof Becker’s reaction is that newspapers are doomed:

That the Internet is a more efficient provider of news and opinion than newspapers is seen in the fact that hardly anyone under age 40 now reads papers. Readership is also declining among older persons ….

Although the printed newspaper industry is doomed, and will be missed by those of us that remember newspapers in their heyday, they are being replaced by good substitutes in the form of blogs, social networks like Facebook and Twitter, online news gathering by various groups, including newspapers, and other electronic forms of communication. People in democracies will continue to have access to independent and often quite accurate, reports on events in their own countries and most other parts of the world.

from The Social Cost of the Decline of Newspapers? Becker

Marty Schwimmer rounds up some of the reaction to Judge Posner.

Judge Posner has seized on what is widely seen as a crisis in the newspaper industry. That crisis has led Rupert Murdoch and Associated Press, in particular, to start waging a public relations war against Google. The difficulty is, if they really don’t want the links (and all the incoming traffic), they can block them quite simply.

Read Danny Sullivan’s thoughtful expose of the threadbare nature of these Emperors’ clothes: esp. here and here.

(ps Of course, here in Australia, you do have to be careful you are not linking to websites that contain infringing content themselves – Cooper v Universal.)

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Upcoming copyright and patent talks

Ben Fitzpatrick will be giving his highly regarded annual update of patents for IPSANZ on 16 July at 12.15 at the RACV Club in Melbourne.

Details will be available here (in due course).

After talking in Melbourne on 3 August, Dr Gurry will be delivering a speech at the National Press Club in Canberra on 4 August and then

on 6 August, the keynote speech at the Reimagining copyright for the 21st century in Canberra at the National Gallery. In what promises to be an exciting conference, there will also be papers by:

  • Professor Brad Sherman: Key developments in the last 40 years of copyright
    that shape our thinking about the future
    * Professor Sam Ricketson: Copyright and functional products
    * Sophie Goddard SC: Development of copyright by the courts
    * Dr Matthew Rimmer: The role of fair use in creative freedom
    * Associate Professor Melissa de Zwart:The role of copyright in innovation
  • Professor Brad Sherman: Key developments in the last 40 years of copyright that shape our thinking about the future
  • Professor Sam Ricketson: Copyright and functional products
  • Sophie Goddard SC: Development of copyright by the courts
  • Dr Matthew Rimmer: The role of fair use in creative freedom
  • Associate Professor Melissa de Zwart:The role of copyright in innovation

More details from here.

Finally, details about the biennal Copyright Society Symposium on 14 and 15 October 2009 in Sydney are up here.

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$80,000 (USD) per download

In case your newsfeed hasn’t beeped you, the jury in Minnesota has awarded the record companies US$1,920,000 against Jammie Thomas for her 24 infringing downloads.

That’s right, $80,000 per infringement.

The original award, which the judge quashedsua sponte“, was “only” $220,000. Presumably, there are going to be some interesting motions “non obstante veredicto“?

Evan Brown has some links. The Age (lid dip Matt Bromley).

Howard predicts (hopes?) this is the end for record companies.

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Parallel imports and books (again)

Professor Joshua Gans published an opinion piece railing in the Age against the laws restricting parallel imports of book (via his blog here).

The burden of his argument is that it is absurd and outrageous that he can’t even download an electronic copy of the book he authored for use on his Kindle here.

Now, don’t get me wrong, I’m very frustrated not to be able to buy anything on a Kindle here (when I’m not dreaming about what an Apple iTablet might be). It is absurd. It is outrageous.

He says:

So why is it possible for hard copies of books to move across international borders but not electronic copies? The answer is that publishers, who have intellectual monopolies over these works, for their own reasons have not done the deals to make it possible. Regardless of what I, as an author, might like, a gatekeeper is standing between my readers and my book.

But, this doesn’t have anything to do with the laws on parallel imports. As he points out, even under the laws he is trying to bring to an end, you, he and I can parallel import physical copies of his book.

Rather, the problem is that, he negotiated split publishing rights – University of NSW for Australia and The MIT Press for (at least) North America – presumably in the hope that the two publishers would maximise his returns from the different markets and he didn’t negotiate a global electronic rights deal.

Now, maybe he would say he tried and the publishers refused or, more likely, even if one gave a single publisher the global electronic publishing rights, maybe they would still parcel up the world into individual territories.

If you can do a deal to co-publish with 2 physical publishers, why not with a third electronic publisher like Amazon’s Kindle? Why not do the deal with Amazon’s Kindle (or someone like that) first and then line up the physical publisher?

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WIPO Copyright progress

William Lye has a comprehensive report on the conclusion of the latest round of WIPO’s Standing Committee on Copyright – a late agreement:

  1. to address a proposed treaty on copyright exceptions for visually impaired persons and others; and
  2. for renewed focus on the rights of audio-visual performances; and
  3. to continue discussion on the need to protect (badly misunderstood) broadcasters.

William Lye’s report here; the Chairman’s draft conclusions here. The discussion of exceptions seems to be much broader than just rights of the visually impaired: full range of discussion papers and working materials here and here.

For some reason, the Australian government is opposed to the proposals for visually impaired persons: Nic Suzor wants to explain to you why you should do something to help change this here.

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