Shameless self-promotion
Turns out, I’m doing a talk on IceTV for the Victorian Society of Computers and the Law in Melbourne on Monday, 13 July 2009June 2006 at 1.00 pm.
More details here.
Shameless self-promotion Read More »
Copyright
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 copyrightthat 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.
Upcoming copyright and patent talks Read More »
Harvard Bus School on the impact of file sharing
Felix Oberholzer-Gee at Harvard and Koleman Strauss at Uni. of Kansas take an empirical look at the effect of file sharing on copyright industries.
They accept that file sharing has weakened copyright protection (although they are quite sceptical about the studies trying to prove this). They argue this is only part of the question, however, for policy-makers. They contend that, if the role of copyright is to provide incentives to create new works, it is necessary to look rather more widely.
For example, they note:
- the publishing of new books increased by 66%
- the number of new albums released more than doubled;
- the number of feature films produced has increased by 30%,
in the early years of the 21st century.
They also note that revenues from concert sales and merchandising and the like has also increased.
Exploring this, their tentative conclusion for policymakers:
The role of complements makes it necessary to adopt a broad view of markets
when considering the impact of file sharing on the creative industries. Unfortunately, the
popular press – and a good number of policy experts – often evaluate file sharing looking
at a single product market. Analyzing trends in CD sales, for example, they conclude that
piracy has wrecked havoc on the music business. This view confuses value creation and
value capture. Record companies may find it more difficult to profitably sell CDs, but
the broader industry is in a far better position. In fact, it is easy to make an argument that
the business has grown considerably.
The role of complements makes it necessary to adopt a broad view of markets when considering the impact of file sharing on the creative industries. Unfortunately, the popular press – and a good number of policy experts – often evaluate file sharing looking at a single product market. Analyzing trends in CD sales, for example, they conclude that piracy has wrecked havoc on the music business. This view confuses value creation and value capture. Record companies may find it more difficult to profitably sell CDs, but the broader industry is in a far better position. In fact, it is easy to make an argument that the business has grown considerably.
Download the pdf here.
Lid dip Joshua Gans
Harvard Bus School on the impact of file sharing Read More »
$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 quashed “sua 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.
$80,000 (USD) per download Read More »
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.
IPRIA, ISPs and (Copryight) authorisation Read More »
The Internet Wars (copyright campaign) come to ISPs down under
The big movie studios have brought proceedings against iiNet, one of the larger (in a non-Bigpond sort of way) ISPs seeking to impose liability on the ISP for infringing downloading by its subscribers.
The Application is here (pdf) and the Statement of Claim is here (pdf).
Various analyses:
Nic Suzor has a detailed view here
Kim Weatherall here
Australian PC Mag here
The Film Industry outlines its position here
IPRoo carries a quote from the Internet Industry Association’s CEO here.
As you can see from this coverage, this has really set the cat among the pigeons. The striking thing about this action, however, is that one might have characterised iiNet as a general purpose ISP, not existing just to promote infringing downloads like the Court’s found Mr Cooper’s mp3s4free.com or substantially like Kazaa.
Thus, the distinction propounded by the record companies in Cooper (at [123]) and both questioned and side-stepped by Branson J (at [40]) appears to be very squarely off the table. So, as many of the bloggers note, it is not too much of a stretch to claim that the future of the internet is at stake here. Will the old Copyright Convergence Group‘s analogy to the postal system – imposing liability only on the person who introduces (posts) the material – be confirmed or will we, through the Courts, turn back into a closed, monitored system?
The ISPs can hardly be surprised:
(a) s 101(1A(c) expressly provides for the development of an industry code to establish norms;
(b) the copyright owners have directly attacked the ISPs in Eire;
(c) the UK government has “brokered” some sort of more “pro-active” role on ISPs too.
No doubt, if the matter goes to trial, we can expect to see a volume of evidence about the volume of iiNet’s P2P traffic vis a vis its other activities and, before then, perhaps some applications for discovery of traffic details.
Given that liability appears to be predicated on authorisation, it will also be particularly interesting to see how the movie producers circumvent the prohibition on intercepting communications over a telecommunications system and, perhaps, (if an ISP is a carriage service provider) the prohibition on use or disclosure of information the contents of any communication carried by a carriage service provider.
The Internet Wars (copyright campaign) come to ISPs down under Read More »
The record industry against the world
The EFF undertakes a review of the recording industry’s war against file sharing on the fifth anniversary of the launching of the RIAA’s first case.
Meanwhile, the RIAA is suing an attorney who seems to work overtime for defendants sued by the RIAA: here and. Amongst other things, Mr Beckerman maintains a checklist of tips for people facing an action by the RIAA: they won’t be directly applicable here, but who knows what food for thought you may find. If you want to get a better understanding of how the US litigation works, read Mr Beckerman’s article from the Judges Journal here.
And the RIAA is appealing (more here) the Jammie Thomas decision, seeking to be heard before the retrial.
Lid dip: Excess Copyright.
The record industry against the world Read More »
Lessig on copyright reform
Prof. Lessig has an opinion piece in the Wall Street Journal outlining his ideas on what needs to be done to put copyright “right”.
Read it here.
Many owners of copyright no doubt will not agree.
Lessig on copyright reform Read More »
Copyright liability for hosting material posted by others
Section 116AE of the Copyright Act 1968 (Category C activity) provides for a limitation on the liability of hosting services for material posted by others. Think, for example, of YouTube or those websites that ISPs provide their subscribers. The broad conditions for the protection to apply are set out in s 116AH. Copyright Regulations reg. 20A to 20X provide more detailed requirements, including the notice and take down procedures.
Apart from the failed attempts of pretty much naked infringers to rely on these provisions, we don’t have much case law on how these provisions apply. See Cooper and KaZaa.
The provision is closely modelled on §512(c) of the US Copyright Act (putting to one side the problematical “carriage service provider” criterion).
Therefore, you might find a US case, Io v Veoh, in which the host successfully relied on the defence worthwhile reading.
Prof. Goldman has an excellent discussion here.
One of Prof. Goldman’s points is the problem of the relationship of the ‘safe harbours’ to liability for secondary infringement (the nearest analog in Australia being liability for authorising copyright infringement).
That could be an issue here too on the Moorhouse principles, but it has always seemed to me that, before this safe harbour was introduced, the web host had an even more direct exposure for direct infringement by reproduction and, possibly, communication. I wonder if the US Second Circuit’s approach in Cartoon Network v Cablevision (Aug. 4) has potential here?
Copyright liability for hosting material posted by others Read More »
Resale royalty right
On Saturday, the Age carried a story about the proposed resale royalty right.
The details (yet to be implemented in legislation) are up here (pdf) and here (rtf):
The scheme will start on 1 July 2009. It will cover:
resales of original works of visual art sold through the secondary art market where the seller has acquired the work after the legislation takes effect. It will not be restricted just to works created after the scheme starts.
If such a qualifying work is resold (in the secondary market) for AUD$1,000 or more, there will be a 5% fee payable to the artist. This is the option the then Government’s 2004 study found would generate the highest level of royalty payments. (There is no indication whether or not the $1,000 will be indexed.) Liability for payment will be joint and several and will cascade: seller, buyer’s agent, buyer.
For these purposes, a ‘ resale’ will include:
all resales involving art market professionals, public institutions or organisations, and all resales subsequent to the first transfer of ownership, regardless of whether the first transfer was made by sale, gift or any other means.
A ‘work of visual art’ will be:
work of art original works of graphic or plastic art, such as a painting, a collage, a drawing, a limited edition print, a sculpture, a ceramic, an item of glassware or a photograph. This definition reflects similar arrangements in the EU.
To qualify, the author will have to be an Australian or permanent resident (or their heirs) – I wonder if this will require qualification at the time the work was made?
The fact sheet indicates the possibility of reciprocity under foreign schemes. It suggests this might have something to do with the Berne Convention. A resale royalty (or droit de suite) is not covered by art. 6bis, but art. 14ter.
Joshua Gans looks at the economics here. Anyone familiar with ‘artist’s rights’ legislation in Australia could have told him that artists, like children and the mentally incompetent, won’t be getting any right to ‘opt out’. The fact sheet confirms:
The right will be inalienable and unable to be waived.
The then Government’s 2004 study estimated that the scheme now proposed to be adopted would have captured 72% of sales at public auction in Australian in 2003. 823 artists would have benefited, with an average royalty of $3,300. One artist would have generated a royalty of $207,000 and, at the other extreme, another $40. Administration costs would have been $600,000. This is much higher than the UK estimates of £1 million start up costs and £50,000 pa on-going.
For those of you concerned that this might be the end of the auction market in Australia, a UK study (where a (somewhat different) scheme is operating, didn’t think so.
Resale royalty right Read More »
