Copyright

Help Help I don’t have a copyright

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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

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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

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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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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.

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Upcoming copyright and patent talks

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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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Harvard Bus School on the impact of file sharing

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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

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$80,000 (USD) per download

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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.

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IPRIA, ISPs and (Copryight) authorisation

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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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The Internet Wars (copyright campaign) come to ISPs down under

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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.

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The record industry against the world

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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.

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