Copyright

Resale royalty bill

The House Committee report into this bill has now been published.

Background and potted summary here and here.

There are 9 principal recommendations including introduction of an “opt out” clause for artists,

  1. broadening of the scope of artwork covered to include “batik, weaving, or other forms of fine art textiles; installations; fine art jewellery; artist’s books; carvings; and multimedia artworks, digital and video art”;
  2. broadening of the scope of clause 8(3)(d) of the Bill be to reflect the full range of transactions involving the ‘commercial’ resale of artwork (eg the Internet);
  3. broadening of the scope of the definition of art market professional to include ‘art market dealer’, in lieu of ‘art dealer’ in order to capture other commercial operators whose primary business may not be artwork but nonetheless sell artwork from time to time
  4. to address concerns about acquisition of property on other than just terms, amendment of the bill to exclude from liability for payment the seller or alternatively exclude the bill’s operation from the first resale after the bill comes into force

and some rather novel recommendations in relation to the treatment of aboriginal or indigenous artists.

Lid dip, Copyright Council.

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That Obama poster

Hyperlinking off the reference to the new President, you’ve no doubt heard about the copyright infringement allegations Shepard Fairey‘s Obama poster apparently based on an Associated Press photograph has generated.

Nic Suzor thinks this is unfair and shows why we need a broadly based “fair use” defence or a transformative use defence.

Now, this is a very important problem and I personally don’t have a problem with a broadly based “fair use” defence, but I wonder where Nic’s idea fits in in a world where authors have moral rights – which just happens to be the world Australians live in?

Now, I guess if you were more or less leftish (bit hard to know where on the spectrum Democrats in the US might fall anywhere outside the USA), you might well think favourably of both the poster and the photographer – who doesn’t seem to get acknowledged in the poster, but I may be wrong about that.

What would happen, however, if the photographer was strongly left leaning in principles or smitten with the President and the transformer used the photograph to make some sort of criticism of the President by putting him in that Bansky or the Rudd “homage“.

At the moment, the photographer might well be outraged and concerned that fellow Obama-ites might think less, very much less of him/her.

That seems like the very sort of thing that moral rights might well be designed to protect the author against.  Shostakovich famously successfully stopped the use of his music in some paen to Nazidom, at least in part because of the damage it would do to his reputation in his USSR homeland. And that is even without the droit de divulgation and the right to withdraw a work from publication.

Which policy would win out?  Which should win? The “reasonableness” defence (here and here) might be open, but how does one apply it in this context?

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Reading aloud (talking book) infringes?

Amazon’s new e-book reader, the Kindle 2, is sending the internet’s electrons into a tizz: apparently, once you load an electronic book into it, you can select a text to speech function which reads the book out loud to you.

The Authors’ Guild claims this is an exercise of the “derivative right” or something under US law; not covered by the publishing agreement and so an infringement. Better analysis here and here.

Now, I don’t think the Kindle 2 is available here (the Kindle “1” never made it either), but my computer can do this text to speech thing too.  Should I be worried?

(Of course, we’ll ignore how I got the @#$! e-book into my computer – I mean, for the purposes of this exercise we’ll assume I could get it on my computer on the same terms as Amazon sends it out to Kindlers.)

So, presumably, the file constituting the e-book has to be run through some sort of converter to get those little “1”s and “0”s into sounds. Is that making a translation (see the adaptationright conferred by s 31(1)(a)(vi) (and see para. (c) of “adaptation“) or may be just a straight reproduction (see s 21(1A))?

Hmm, but wouldn’t getting the digital file on my computer displayed on the screen also involve a sort of translation or reproduction? So, maybe there’s an implied licence to do something like this. That could of course be “bad” as the copyright owner might then include something in the terms and conditions I downloaded (or will in the future download) that excludes this.

A-ha! I hear you say, there’s that nice defence provided by s 47B for the normal use of a computer program and, even better, it can’t be excluded by contract (see s 47H).

This is looking good so far.  But what’s that you say, it only covers “reproduction”.  Would that cover “adaptation” too?

Look at the extended definition of computer program for the purposes of  Part III Div 4A provided by s 47AB. I wonder if the “book” part of the product (the thing I read or am trying to listen to) is essential to the operation of a function of the program; it’s certainly essential to the reason why I bought (or no doubt the EULA will say “licensed”) the e-book in the first place.

The EULA probably says all disputes about the EULA are governed by the laws (excluding the conflicts of laws laws) of the State of {some place in Obamaland}. I wonder if the courts over there will accept s 47H can override the written terms of the EULA? That’s OK, may be I just won’t travel there anymore.  Or maybe I can hope their courts will interpret their “fair use” provision like they did in the Connectix case.

Good thing we’ve got these nice defences isn’t it?  May be we should head over to Nic.Suzor and find out what the EFA told the (definitely not Orwellian sounding) DBCDE  here.

May be I could fall back on the problems Sony had proving that the small part of the file streamed through the buffer (or is that buffered through something?) is a “substantial part”.

But, wait, there’s more. It’s (hypothetically) speaking the thing aloud.  Is that a performance in public? Unless you’re all peering over my should, perhaps we can argue that it’s not. Afterall, no-one has seriously argued that reading a book aloud to yourself is a performance in public. cases do have that troubling bit about “public” means “part of the copyright owner’s public”, but would that be distinguishable on the basis that there is no employment or business context? As Dawson and Gaudron JJ said in Telstra v APRA:
The distinction between what is “in public” and what is “in private” is of little assistance in determining what is meant by transmission “to the public”. The transmission may be to individuals in private circumstances but nevertheless be to the public. Moreover, the fact that at any one time the number of persons to whom the transmission is made may be small does not mean that the transmission is not to the public. Nor does it matter that those persons in a position to receive the transmission form only a part of the public, though it is no doubt necessary that the facility be available to those members of the public who choose to avail themselves of it. In Rank Film Production Ltd v Colin S Dodds the number of guests playing films in their rooms may not have been large, but the motel was open to the paying public. Similarly, those members of the public who choose to call a relevant number on their mobile telephone may be relatively small, but the facility is available to members of the public generally.
What is important is the nature of the audience constituted by those who receive music on hold. Lying behind the concept of the copyright owner’s public is recognition of the fact that where a work is performed in a commercial setting, the occasion is unlikely to be private or domestic and the audience is more appropriately to be seen as a section of the public. It is in a commercial setting that an unauthorised performance will ordinarily be to the financial disadvantage of the owner’s copyright in a work because it is in such a setting that the owner is entitled to expect payment for the work’s authorised performance. In this case it is not so much the preparedness of the audience of music on hold to pay to hear the works were it not for their unauthorised performance that is significant. That simple analysis belongs to an age where communications were less technologically advanced and business and marketing techniques were less developed. Rather, it is the preparedness of those who wish the music on hold to be played to bear the cost of the arrangement which provides the key, for it reveals the commercial character of the broadcast and the commercial deprivation suffered by the copyright owner. Callers on hold constitute the copyright owner’s public, not because they themselves would be prepared to pay to hear the music, but because others are prepared to bear the cost of them having that facility. For the performance of the music to that audience the copyright owner would expect to receive payment, even if not from the members of the audience. ….
Good thing we cleared that up, then!

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IPRIA, ISPs and (Copryight) authorisation

IPRIA is hosting a free seminar on ISPs liability for authorising copyright infringement.

Impressive range of panellists. Possibly the only hotter topic in copyright is what is a reproduction of a substantial part. Score a CPD point!

5 February 2009 at 5.30 for 6.00pm.

Details via here.

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3 strikes – across the Tasman

Apparently, New Zealand’s copyright law has been amended to require ISPs to terminate the account of a “repeat infringer”.

Excess Copyright has the links.

Our law – Copyright Act s 116AG – already provides that a Court may order the “carriage service provider” to terminate a specified account.

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Digital Economy – Future Directions consultation

The convolutedly named The Department of Broadband, Communications and the Digital Economy has issued a consultation paper for industry on the Digital Economy Future Directions.

Apparently, the consultation draft arises from workshops held in August and September 2008.

There is considerable useful detail about the state and composition of the digital economy in Australia and questions on a range of important issues are posed.  In connection with the regulatory framework issues, the following questions are raised:

Should the existing copyright safe harbour scheme for carriage service providers be broadened?  

Does Australia’s copyright law unreasonably inhibit the operation of basic and important internet services? If so, what are the nature of such problems and practical consequences?  How should these be overcome? 

Is there non-copyright legislation that is directly relevant to digital economy businesses that create uncertainty or barriers? 

One might have thought, at a minimum, that the scope of the so-called copyright ‘safe harbors’ should be expanded from the indecipherable ‘carriage service providers’ at least to the extent of ‘service providers’ permitted under the Free Trade Agreement (see art. 17.11.29).  One might also speculate that it would be preferable to adopt a global framework for such service provider liability rather than adopting inconsistent and contradictory regimes for different subject matter such as copyright and defamation etc.

The paper specifically excludes from its scope questions about the National Broadband Network.

The consultation paper is available in pdf or Word format via here.

Better hurry, you have until 11 February 2009 to get your pearls in.

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Is copying enough to infringe Down Under?

The Full Court (Lindgren, Goldberg and Bennett JJ) has allowed the appeal in Elwood v Cotton On. So, for example, contrary to the trial Judge’s ruling, Elwood’s copyright in this:

 

Elwood New Deal T-shirt
Elwood New Deal T-shirt

was infringed by this:
  

Cotton On Moscow T-shirt
Cotton On Moscow T-shirt

First, the Full Court agreed with the trial Judge that Elwood’s t-shirt design was properly classified as an artistic work and not a literary work nor both an artistic work and a literary work: the semiotic component – the words and numbers – was too slight for the design to be viewed as an artistic work.

As an aside, the Full Court did not express a view of whether or not the ruling in Anacon that a circuit diagram was both an artistic work and a literary work represented the law in Australia.

Secondly, the Full Court reiterated that infringement was to be tested in 3 steps:

(1) to identify the work in suit in which copyright subsists;

(2) to identify in the alleged infringing work the part taken (ie derived or copied) from the work in suit; and

(3) to determine whether the part taken constitutes a substantial part of the work in suit.

At the stage of identifying the work in suit, the Full Court ruled that it was the work as a whole which needed to be identified.  The Full Court held, however, that the trial Judge had erred by excluding from consideration at this stage those matters which her Honour found were matters of “idea” rather than “expression”.

Cotton On was found, both at trial and on appeal, to have blatantly copied from Elwood’s work. As a comparison of the work and Cotton On’s designs above shows what Cotton On took was the the layout, positioning of elements and the overall “look and feel”.  What it didn’t take were the actual words, symbols and images.

The trial Judge had found this significant, ruling that:

The text and symbols matter. The colours matter. Similarly, unlike Finkelstein J in Autocaps [a reference to Autocaps (Aust) Pty Ltd v Pro-Kit Pty Ltd (1999) 46 IPR 339], I cannot say that what is conveyed by the two prints is the same – it is not.

Having found the error identified above, the Full Court disagreed.  Their Honours found that the layout, selection , arrangement and style of the various elements were a substantial part of the copyright work and so there had been an infringing reproduction.

The means by which the Full Court arrived at this conclusion is significant.

The Full Court had appeared to accept that there may be a role for “ideas” and “expression” at the infringement stage of the inquiry.  However:

35 While the idea/expression dichotomy is basic to the law of copyright, it is a difficult one, particularly in the case of artistic works. What principles are to govern the demarcation? The “idea” underlying a copyright work can plausibly be identified at different levels of generality. The higher the level of abstraction, the more that is left as protectable expression. The lower the level of abstraction, the less that is left as protectable expression. ….

….

37 A difficulty associated with the idea/expression dichotomy is that the choice of the level of abstraction is subjective and uncertain. Mr Simons’s identification of the underlying concept (see [21] above) was not conclusive.

In contrast, the Full Court preferred a rather more mechanistic approach.  The layout, etc., “look and feel” were substantial because the evidence showed that far more effort went into achieving them:

70 Mr Gillott said that he and Mr Simons tried to achieve a “balance” of the six elements on the front and the five elements on the back, and the proportion they bore to one another. He estimated that there were at least 10 to 15 printouts by Mr Simons on which he (Mr Gillott) wrote his comments and his “scribbles”. He said that the entire process took a good two weeks, but no more than three weeks, from the time he handed over his initial draft to Mr Simons.

71 Mr Gillott described Elwood’s design procedure. He said that the form and shape was settled upon first, and the “type elements”, “wording and text elements”, last. It was after that two to three week period that attention was directed to finalising the wording and text. Mr Gillott said that “once we’re down to inputting the words that we would like in the art, that happens quite quickly”. He explained that it took no more than two days to put those elements into the design, because he “already had the ideas to carry “Raging Bulls” through”, and the expression “Durable by Design” was Elwood’s “core logo”. He said that once those elements were introduced, he signed off on the NewDeal print and it took no more than two days for production to commence.

….

73 Mr Gillott’s evidence recounted above, which was not contradicted, was to the effect that by far the greater part of the effort, skill and time involved in designing of the NewDeal T-shirt was devoted to layout rather than with the choice of words and numerals. (emphasis supplied)

Two weeks versus two days may seem, perhaps, a rather quantitative approach to the qualitative assessment of judgment and degree which the traditional inquiry into a substantial part is acknowledged to require.

It also turned out that Elwood’s design was in fact a development of its earlier 96ers T.  Unfortunately, an image of that earlier design is not included in the judgment.  Their Honours explained, however, that the New Generation design involved the following differences:

74 There are obvious similarities between the 96ers and the NewDeal design but the NewDeal design contained artistic expressions of an underlying idea that were not found in the 96ers. Mr Gillott and Mr Simons introduced the following features:

curved sections;

some changes to the presentation of the bull’s head trade mark;

new letter forms;

accentuation of the overall V shape;

a balance of the six elements on the front and the five elements on the back; and

changes in the proportions borne by the respective elements to one another.

By taking these features of the NewDeal design or layout, Cotton On reproduced something that was or included a substantial part of that design or layout.

Elwood Clothing Pty Ltd v Cotton On Clothing Pty Ltd [2008] FCAFC 197

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YouTube and IP

Indications are that Universal Music is now making “tens of millions of dollars” from the use of its music on YouTube.

Slightly different outcome to the apparently stalled Viacom approach to social networking sites?

Concurrently, there are newspaper reports that the RIAA, famously suing grandparents and 12 years olds, may be changing its litigation strategy.

Howard Knopf worries that this might be because “sweet heart” deals are being reached with ISPs. Anyone want to sue, say, iiNet?

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Resale royalty right

The previously foreshadowed bill to introduce the resale royalty right has been introduced into Parliament.

The Resale Royalty Right for Visual Artists Bill and EM can be found here.

The Bill has been referred to the House’s (not the Senate’s) Standing Committee on Climate Change, Water, Environment and the Arts for consideration and an advisory report to the House by 20 February 2009.

Presumably, if the Government and the “Coalition” can reach agreement on the terms of the Bill, it won’t be necessary to deal with those pesky independents and greenies.

Lid dip, the Australian Copyright Council.

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Parallel imports and books

The Productivity Commission has published its issues paper on its reference relating to the parallel importation of books.  You can download the pdf here.  At present:

(1) anyone may “parallel” import a book for their own use (i.e., not to resell or distribute it);

(2) books first published after 22 December 1991 and not published first simultaneously in Australia may be parallel imported;

(3) for any other books, however, there is a very convoluted regime,

see Copyright Act 1968 s 44A and 112A.

Things have apparently changed since all the earlier studies by the then Prices Surveillance Authority, the ACCC and the Ergas Committee as now they would have us believe:

While requiring the Commission to examine options for reform, the terms of reference should not be taken as meaning that the current restrictions are necessarily inappropriate. That is a matter to be examined in this study.

Nonetheless, the Productivity Commission appears to have started from the former Prices Surveillance Authority’s proposition that the right to control imports is some how additional or extraneous to copyright:

It has been argued that restrictions on the parallel importation of books provide an incentive, additional to that provided by copyright alone, for people to create literary works.

At an impressionistic level, one clear benefit under the current regime has been the faster availability of paper-back editions. My recollection is that the Prices Surveillance Authority found paperbacks were usually not published until at least one year after the publication of the hardback edition in Australia – and often longer.  Walk into any Dymocks, Borders or whatever these days and you will often see 2 or even 3 different versions of the same book – the UK paperback, the US paperback and often the trade or mass market versions as well (the ones that smudge when you press your thumb too hard on the page).

It will be very interesting to see how the Productivity Commission explains its competition theory to support repeal when anyone with an internet connection can jump online and order the book from overseas (for their own use).

The sector most affected by the current regime might be thought to be the booksellers who can’t use this form of arbitrage (at least for books first published simultaneously in Australia – unless they already have a written or verifiable telephone order).  Would we all be better off if the booksellers could use the threat of parallel importing in volume to negotiate a better price from the the local publisher/distributor?

It will also be interesting to see how the Productivity Commission deals with possible cultural considerations, which have proved so powerful in Canada in trying to block parallel imports.  The Productivity Commission raises the possibility, however, that such issues can be better addressed by direct subsidies – so in the interests of market forces operating, the Government would have a more active role in trying to pick ‘winners’ and taxpayers generally would subsidise readers.

Your comments should be submitted to the Productivity Commission by 20 January 2009.

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