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The Commonwealth Government has released the Final Report of the Convergence Review (pdf).

While initially there were some indications that this review might relate to intellectual property issues, especially copyright, the Final Report focuses on the areas of regulation traditionally covered by labels like “broadcasting”, telecommunications, “spectrum allocation”, “media ownership” and “local content” requirements.

The Minister’s Press Release notes that:

The release of the report provides an opportunity for stakeholders to engage with the Committee’s recommendations. I expect the recommendations will generate robust public debate

and indicates the Government will respond in due course

Links to various preliminary documents and Word version of Final Report.

Lid dip: Copyright Council

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The Commonwealth Attorney General has announced the appointment of Prof. Jill McKeough to lead a review by the Australian Law Reform Commission into the operation of copyright in the digital environment.

Prof. McKeough is Dean of the University of Technology Sydney and a well known IP luminary.

According to the Press Release:

“The Gillard Government is determined to get the balance right between providing incentives for creators and innovators and encouraging new opportunities within a digital economy including via the National Broadband Network.

“The inquiry will consider whether the exceptions in the Federal Copyright Act are adequate and appropriate in the fast paced digital environment,” Ms Roxon said.

Draft terms of reference are to be released soon, for consultation.

The ALRC has famously produced the excellent Designs report which led to the Designs Act 2003 and also a report into Gene Patenting. Hopefully, this inquiry will get the resources and the time to meet the high standard set by those efforts.

Lid dip: Peter A. Clarke

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Last Friday, the Commonwealth Attorney-General released a Consultation Paper on ‘Revising the Scope of the Copyright Safe Harbour Scheme’.

As reported then, there were two components to that review.

Over the weekend, the second component – streamlining the notice and take down procedures – has been edited out of the revised version (pdf) (doc version via here).

So now, the consultation paper just relates to re-defining “carriage service provider“.

There’s a fact sheet on how the scheme currently works. Unfortunately, the links to the previous review and submissions seem to have been taken down.

Last Friday’s post referred to the US-Australia Free Trade Agreement. The relevant provision is in chapter 17. So far as the protections apply to service providers, Art. 17.11 paragraph 29 provides:

(xii) For the purposes of the function referred to in clause (i)(A), service provider means a provider of transmission, routing, or connections for digital online communications without modification of their content between or among points specified by the user of material of the user’s choosing, and for the purposes of the functions referred to in clause (i)(B) through (D), service provider means a provider or operator of facilities for online services or network access.

This may be contrasted with the corresponding provision in the “parent” of article 17.11, §512(k) (pdf) of the US Copyright Act which defines service provider for the purposes of the DMCA safe harbours as follows:

(1) Service provider.—(A) As used in subsection (a), the term “service provider” means an entity offering the transmission, routing, or providing of connections for digital online communications, between or among points specified by a user, of material of the user’s choosing, without modification to the content of the material as sent or received. (B) As used in this section, other than subsection (a), the term “service provider” means a provider of online services or network access, or the operator of facilities therefor, and includes an entity described in sub- paragraph (A).

At least, the US definition appears to make it clear that a service provider may be one who provides services not just, as the Australian legislation seems to have been drafted to reflect, only providers, or operators, of facilities for such services. Given the nebulous nature of the term ‘facilities’, however, that may be a difference more imagined than real.

Although it doesn’t provide any “binding” authority like the Free Trade Agreement, the EU directives proceed on the basis of persons providing “information society services”. See e.g. art.s 12 -15 of the E-Commerce Directive, DIRECTIVE 2000/31/EC (pdf).

Lid dip: Leanne O’Donnell.

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The Government has announced its responses to ACIP’s reviews of:

• post-grant Patent enforcement; and
• enforcement of plant breeder’s rights.

On a quick skim, the main recommendation to introduce a Patents Tribunal to determine “IP” disputes has been found non-viable due to the limitations on the Commonwealth’s repository of judicial powers. With WIPO’s arbitration and mediation service in mind, however, IP Australia is to work with alternative dispute resolution providers to provide a new ADR resource. In the PBR context, the Government states that it does not consider it appropriate for IP Australia, as a regulatory agency, to provide post-grant mediation services itself.

The review on PBR has received rather mixed results.

The Government has not accepted the proposal to introduce a “purchase” right.

The PBR Act will be amended to clarify that harvested material which can also be used as propagating material qualifies as propagating material for the purposes of the Act’s prohibitions.

The Government accepts that no changes to the operation of ss 14 and 15 are required.

At this stage, the Government considers that the making of “mendacious” declarations of PBR is adequately covered by the prohibitions on misleading or deceptive conduct in trade or commerce.

Lots of recommendations for more education.

No doubt, you will have your own favourite recommendation(s), but (as I am not a Kat, ip or otherwise) that is all there is time for today!

The Minister’s Getting Tougher on Imitators press release.

ACIP’s “patents” review (pdf).

ACIP’s PBR review (pdf).

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On 28 April, the Government’s Convergence Review (noted here) issued a Framing Paper.

According to p. 4 of this curious document:

This initial consultation paper seeks to identify the principles that should guide media and communications regulation in Australia, and provide stakeholders with the opportunity to raise the key issues arising from the principles. Its intent is to invite big-picture thinking about the Australian media and communications environment in its global context and how it may need to be shaped in order to achieve principles that serve the public interest. The committee will use these principles as a starting point to advise government of its preferred alternative policy framework

Accordingly (from p. 11):

the committee considers it appropriate to develop and consult with stakeholders on a set of principles to guide the committee’s consideration of specific issues. These principles have two main aims: to provide a consistent and transparent basis on which to consider specific issues and to ultimately form the basis of a set of policy objectives suitable for a converging media environment.

So your comments on the Framing Paper are sought by 10 June 2011. Then, the timetable is:

• Emerging Issue paper : June 2011
• Hearings: July 2011
• detailed Discussion Papers: August 2011
• Final Report: March 2012.

For the most part, the Framing Paper appears to relate to the regulatory regimes for broadcasting and telecommunications.

When announcing his intention to refer aspects of copyright law to the ALRC, the Attorney-General appeared to indicate that the reference (if any) will be subject to what happens in this Convergence Review. It is not so easy to identify from the Framework Paper, however, what areas might be cut across by the ALRC reviewing copyright law.

The Framework Paper does refer in several papers to “legitimate content services”. May be, it is to be found in “principle 6″ which is (proposed to be):

Principle 6: Australians should have access to the broadest range of content across platforms and services as possible

This principle is taken from paragraph 5(e)(ii) of the Terms of Reference and is consistent with the objects in the BSA12, and s.3(1)(a) of the Telecommunications Act to ‘Promote the long-term interests of end-users of carriage services or of services provided by means of carriage services.’ The committee considers that a guiding principle for the review is to maximise the range of legitimate content services available to Australians. A consideration is that regulation should be flexible and adaptable to changing market and technological circumstances, and constructed with a view to enhancing audiences and consumer choice.

Principle 7 appears to be directed more to the question of ‘net neutrality.

Convergence Review Framing Paper (pdf)

The Convergence Review’s home page

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It’s never too late to discover a government inquiry (at least before the legislation comes through)!

Back in December, the Minister for Broadband, Communications and the Digital Economy announced a Convergence Review.

Media Release, draft Terms of Reference and “home page“.

Given its departmental provenance and some of the discussion in the Background Paper, it might be thought the Review is mainly targeted at the Telco Act, the Radiocommunications Act and the Communications/Media regulator.  There are some interesting straws in the wind for IP however:

First, the first draft term of reference:

(my emphasis).

In the Background Paper, there are also some interesting IP-related aspects:

So, at pp. 14-15:

Another trend affecting business models is the trend towards the ‘granular’ nature of media consumption; for example consumers can now download songs, not albums; watch specific TV shows on demand and not the linear programming of a channel, and read a single news article through an online search engine, rather than purchase and read the day’s newspaper edition. In the online world the consumer is in the driving seat of their own media and entertainment consumption patterns with more choice and control than ever before. In addition to the rise of competing online platforms and fragmentation of the consumer market, another challenge to established business models is that digital revenues are not yet matching analog ones. In 2008, NBC Universal CEO Jeff Zucker famously stated that media companies should not ‘trade analog dollars for digital pennies’24. By 2009, he quipped that this may have increased to ’digital dimes’25. While online revenues are growing and the gap is reportedly closing26, ensuring ongoing investment while balancing the difference between analog dollars and digital cents presents challenges to established media companies.

On p. 16 under the heading ‘Policy settings that encourage Australian, local, and children’s content’, the discussion about Australian content quotas imposed on tv and radio, ends:

The rise of these alternative audiovisual services and the growing fragmentation of the media market raises questions as to appropriate policy settings to ensure the ongoing production and distribution of Australian media content which reflects and contributes to the development of national and cultural identity.

(Their emphasis)

And, of course, the paranoid among you out there in cyberspace, will no doubt recall the rather cavalier treatment (e.g. here and here) meted out to iiNet before it won the (first round of) the Roadshow case.

Now, you could have fun (and spend lots longer than a year) on this: e.g. Prof Gans lambasts the authors (and, I guess, indirectly the other copyright owners who have similar ideas), but (for balance) also the App Store and, of course, until the Floods came, we were all twisted up with Gerry Harvey wondering if putting a GST on online purchases (overseas) will change the fact that you can often buy things online from overseas for prices 30-40% less than in stores here. Assuming of course you can “buy”: compare the tv shows or movies or books in the iTunes store or on Kindle or audible from Australia to what you can get with a US address, maybe. Somehow, I have avoided mentioning Google so far. Wonder how many examples the Review will come up with which lead to peeling back regulation?

Now, the time for commenting on the draft Terms of Reference closed on 28 January, so the scope of the review may become clearer. Then, there will be an independent committee to conduct the review, with their report scheduled for 1st quarter 2012.

One to watch!

Lid dip: Mary Wyburn

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Professors Megan Richardson and Andrew Kenyon and Vicki Huang edit a new online publication “The Fortnightly Review of IP and Media Law”.

So far, it is up to issue #7 and features, amongst other things, a good debate in which Ass Prof. David Brennan responds to Dr Cannold and Prof Palumbi’s opinion piece in the Age on Gene Patenting. Dr Cannold and Prof Palumbi get to reply.

Check it out here (and sign up).

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The Government has published Frontier Economics’ review of the ambush marketing legislation provided by the Olympic Insignia Protection Act 1987 (Cth) and the Melbourne 2006 Commonwealth Games (Indicia and Images) Protection Act 2005 (Cth) (the AML).

According to the Executive Summary, key points include:

• The Review is of the opinion that the AML has provided tangible benefits to the organisers, and that these have a direct (although difficult to quantify) bearing on their ability to raise revenue from licensing. 
• The AML appears to have provided greater clarity regarding the existence and scope of the organisers’ entitlements.
• There doesn’t appear to have been many, if any, ‘blatant’ examples of ambush marketing  for some time.
• Concerns were identified, particularly in the Olympic Insignia Protection Act, with the definition of ‘commercial purposes’ and the requirement to show that an accused use would be seen by a reasonable person as suggesting sponsorship like support.

While the review found the legislation largely working as intended, it did not some qualifications:

(1) whether apparent reductions in ambush marketing are due to factors outside the AML;

(2) whether NSOs and other peak bodies have been unduly hampered in their ability to attract their own sponsorships; and

(3) whether sufficient income generated from the rights granted under the AML has been returned to sport. 

Read the report here (pdf).

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