Australian Copyright and the Future - The Digital Economy

As was discussed on this blog some 8 months ago, the Australian Law Review Commission released its Discussion Paper on the future of copyright in Australia as a precursor to its final report on the topic. Finally, after what seems forever to this writer, the Commission has released its report titled Copyright and the Digital Economy, discussing its recommendations for future legislation in Australia.

The report is very thorough, and clearly focuses on fair use and exceptions to copyright infringement, signaling a well-needed change to the law in light of changes which have taken place in the last 20 years, especially within the scope of copyright. This is illustrated well by the Committee's intention for this review: "The law must be relevant to a complex and changing digital environment, but must also be clear and broadly understood in the community. The law must produce reasonably certain and predictable outcomes, but should be flexible and not inhibit innovation". Due to the report's extensiveness, as usual, this writer will only discuss certain aspects of it. Should you wish to, please read the report in full for a much broader and detailed understanding of the reforms proposed.

Introduction of Fair Use?

A principle which has been well established in the United States, fair use, has been discussed in terms of implementation in a number of common law countries. Fair use can be said to be very flexible, and mouldable, to a variety of technologies and uses in relation to copyrighted works. The ALRC has been discussing the introduction of fair use into Australian copyright legislation, and finally has put forth a recommendation to do so. In their view "...a fair use exception with a non-exhaustive list of four fairness factors to be considered in assessing whether use of another’s copyright material is fair and a non-exhaustive list of eleven illustrative purposes" should be implemented into Australian law.

The importance of introducing fair use can be argued to be sensible, and as the ALRC express: "...fair use differs from most current exceptions to copyright in Australia in that it is a broad standard that incorporates principles, rather than detailed prescriptive rules". Utilizing more broader, less defined principles allows for fair use to apply to newer, more advanced uses of copyright today and in the future. This writer agrees fully with the ALRC and their recommendation, especially in light of changes in the field of copyright in recent years. What copyright, and fair dealing, has been yearning is just that, and would bring copyright into the 21st century.

The proposed provision would be very similar to the aforementioned US provision, taking into account the the purpose and nature of the work's use, while assessing both the availability of the work and the use's effect on the work's market share. The provision would clearly take more direction from US precedent, while still allowing for Australian courts to adapt it in a more Australian context.

New Fair Dealing

Although fair dealing has been used under Australian legislation for a number of years, the provision has fallen behind on what can be deemed to potentially be included within it in modern times. The new proposed additions to the provision would add six new categories included under fair dealing: quotation, non-commercial private use, incidental or technical use, library or archive use, education, and access to people with disabilities. How fair dealing differs from fair use is explained well by the ALRC: "Under fair use, the list of purposes, or types of use, is merely illustrative. The fact that a particular use is not for one of the illustrative purposes does not mean that the use cannot be found to be fair. Fair use essentially asks one question: Is this use fair, considering the fairness factors? The new fair dealing exception, on the other hand, can only apply to a use of copyright material if the use is for one of the prescribed purposes. If a given use does not fall into one of the categories of use, then it cannot be found to be fair". In this writer's opinion the former suggestion would work much more effectively and flexibly in modern copyright, and even though a proposed newer fair dealing provision could fulfill the needs of copyright as uses stand right now, it still does not provide an equal exception in comparison to fair use.

Other Changes

Orphan works have been a thorn in copyright's side for a long time, with provisions only being introduced to mitigate infringement over works where the copyright owner cannot be found. As the ALRC sees that the introduction of such  reforms would "...facilitate the use of orphan works to enable their beneficial uses to be captured in the digital economy, without creating harm to the copyright holder". Arguably this is something that copyright needs, and changes to the laws governing orphan works are necessary.

While the report goes into more specific details in relation to the aforementioned potential changes to both fair use and fair dealing, the report does also provide other changes which it endorses. Due to the report's extensive dealing of these changes, this writer cannot simply fill discussion of all of the rest.

All in all the report is thorough and recommends changes which have been long overdue, and not just in Australia. How and if these recommendations are implemented will be left to the Australian legislature, but the introduction of fair use should merit some haste. The 21st century has been a challenging one for copyright, and not just from a copyright holders' perspective, but as the reform recommendations keep rolling in, it seems the law might finally catch up to what it should have been some time ago.

The Future of Copyright by Lawrence Lessig - Thoughts on His Views

Recently this writer posed a question to Lawrence Lessig, a current lecturer at Harvard and a person of much acclaim in the copyright field, on the website Six Question as to the future of copyright in his mind. More specifically the question posed was: "What do you think is the future of copyright, especially in light of recent developments in other common law countries such as the UK and Australia?" This clearly relates to the avalanche of copyright reviews being conducted in the common law countries such as Australia, the United Kingdom and Ireland. To this writer's pleasant surprise the question was thought to merit an answer, and one was provided by Mr. Lessig a few days ago. Albeit brief, his thoughts do merit some discussion.

In Mr. Lessig's mind "...the future of copyright is up for grabs"; and this can be said to be very true. Where copyright will be taken, and how evolving technologies will both impact and potentially necessitate the possible change, is wholly up for grabs. A certain desire for change can be felt in the public mindset, and rightfully so, as how we consume media has changed radically since the enactment of most copyright laws in the past 30 years. Much like was noted in the preliminary thoughts over the UK copyright modernization, it aims to "...align the law with behaviour most people consider to be reasonable", at least in the context of evolving media. This matches well with Mr. Lessig's thoughts as well: "...[the US] regime needs to be radically updated to the 21st century to digital technologies".

But the future of copyright is not without its uncertainty according to Mr. Lessig: "The biggest problem we have now is that nobody in government, at least in America, is interested in having that conversation [about copyright reform]". What this can be argued to relate to is a reluctance to expand or extend fair use. The current wave of reform clearly is focusing on a change for much more free and flexible approach to the consumption of copyrighted media. Extending those rights could diminish the profits of copyright holders, or at least extinguish secondary avenues of revenue through the restriction of fair use. Corporate lobbyists have fought over the current change in Canada, which quite heavily is beginning to endorse fair use, showcasing a possible rationale for the restriction over the discussion about copyright reform in the US.

Finally, Mr. Lessig notes that "...the battles here are really as much battles about how to open up a conversation about what the right answer is". How would one initiate such a conversation? Quite frankly, there is no clear answer as to how this could be done. The change a lot of common law countries are facing, and the discussion around the reform, will undoubtedly put pressure on the review of US copyright legislation, at least on an international setting. The more people use media as they see as "proper", the more it also merits discussion on the fact. What can be said as a counter-acting interest is one which Mr. Lessig also points out: "...[the legislature] see[s] copyright as an opportunity to produce incredible wealth for campaigns". The acquisition of campaign funds is highly important in the US system, and clearly inhibits the proper function of the legislature as the protector of its peoples' interests, rather than those who fund their campaigns.

The future of copyright is uncertain, but in that uncertainty one can have hope and optimism. With the change that is occurring all over the copyright world, US change seems all but inevitable. Where that change will take copyright within our American friends' regime is very unclear, and the competing interests on both sides seem to have their position firmly entrenched. This writer, much like Mr. Lessig, is optimistic as to the future.

I would like to thank Lawrence for taking the time to answer my question, and hope this can inspire some more discussion around copyright in the near future.

Retrospective - Interpretation of Patent Claims

Patents can be, and more often than not, are incredibly complex and technical. In such complexity accuracy is paramount, especially to guarantee proper protection for the rights you wish to protect. When a patent is applied for the person or entity registering the patent has to specify the claims relating to the patent, or in other words, what the person or entity endeavors to protect with their patent. The wording used when writing claims will create the remit in which protection is awarded for that patent. As such the claims of patents are hugely important, and should things get to litigation, what the wording used protects can be equally, or even more important than what is thought it protects. How these claims are interpreted therefore needs to be expanded on, and the United Kingdom House of Lords did so in the 1980s.

A modern use of angles

The decision in question is Catnic Components Ltd v Hill & Smith Ltd. The case concerned the production of steel lintels, which the plaintiff owned the patent for and manufactured. The lintels had a very specific rear support member, which under one of their claims was described as a "...second rigid support member extending vertically from or from near the rear edge of the first horizontal plate or part adjacent its rear edge". The defendant in question made a similar lintel, but one where the rear support member had an inclination between 6 to 8 degrees; something which deviated only that much from the plaintiff's vertical rear support member. This affected the load-bearing capabilities of the lintels, making the defendant's lintels approximately 0,6 to 1,2 percent weaker than the plaintiff's lintels. The plaintiff sued the defendant for patent infringement, ultimately ending up in the House of Lords.

Due to the slight deviation of the defendant's lintels' construction, the House of Lords had to decide whether this would still infringe the patent owned by the plaintiff. In more simple terms: whether the claim described above could be interpreted as such to include a slight deviation, or whether its express term of verticality would prevent the defendant from infringing the patent. This would have to be assessed based on the 'pith and marrow' of the claim; something which the Lords would have to consider in their judgment. What this encompasses was expressed well by Lord Diplock: "...a patent specification is a unilateral statement by the patentee, in words of his own choosing, addressed to those likely to have a practical interest in the subject matter of his invention (i.e. "skilled in the art"), by which he informs them what he claims to be the essential features of the new product or process for which the letters patent grant him a monopoly". How one would interpret claims based on their 'pith and marrow' was finally expressed by his Lordship:

"A patent specification should be given a purposive construction rather than a purely literal one derived from applying to it the kind of meticulous verbal analysis in which lawyers are too often tempted by their training to indulge. The question in each case is: whether persons with practical knowledge and experience of the kind of work in which the invention was intended to be used, would understand that strict compliance with a particular descriptive word or phrase appearing in a claim was intended by the patentee to be an essential requirement of the invention so that any variant would fall outside the monopoly claimed, even though it could have no material effect upon the way the invention worked."

This would indicate that patent claims should not purely be interpreted literally, but given a more of a purpose based assessment. Under this one could easily include slight deviations in the use of patented inventions, should the deviation still be within the purpose of the patent. A much larger change could clearly not fall under a claim, even under a purpose based assessment.

Under their Lordships' deliberation, the defendant had infringed the plaintiff's patent. Even though their construction was different, the claim was thought to have included these small variants. Clearly their Lordships intended to not limit the scope in which patent claims would be interpreted as being all too literal, and allowed for potential differences to still be included. Should strict compliance be an essential part of the patent, for more technical or functional reasons, one would have to interpret the claim more literally.

Even though the case pertained to the old Patents Act 1949, it is still accepted to apply to the current Patents Act 1977 equally. Lord Diplock's reasoning has also been utilized in several other common law countries; making the decision an important one even in today's patent litigation.

Domain Registrar Faces Infringement Liability in Germany

Internet Service Providers have, for a long time, been the favorite target of copyright holders simply because they are often the conduit between the infringer and the material which is being illegally copied, although their liability as secondary infringers has been rejected since. The Internet provides a web of connectivity between a multitude of actors, such as ISPs, computer manufacturers and others, who in some ways, do enable the infringement of copyright, albeit not as their primary function. As with the former Betamax recorders, the simple function of potentially enabling infringement does not incur liability, arguably at least in most instances, however a new challenge was set against web domain registrars in Germany.

In a recent decision (which can be found here, unfortunately only in German), the German Regional Court of Saarbrücken had to decide on the liability of domain registrars, and whether they could be held liable as secondary infringers should the domain owners facilitate the aforementioned infringement. The case concerned the website h33t.com, which acts as a torrent tracker site, much like the more notorious Pirate Bay. The copyright holders of Robin Thicke's song "Blurred Lines", Universal Music, took on the domain registrar Key-Systems, who registered h33t's domain.

Ed was confused about domains

In their decision the Court saw that domain registrars could face liability if the domains they have registered facilitate the infringement of copyright. If they are notified of the potential infringement of copyright, and choose to do nothing about the infringements, they could face liability. The Court imposed a duty to investigate onto domain registrars; a duty which can be argued to be quite onerous, especially for bigger registrars which manage vast numbers of domains. Key-System's general council, Volker Greimann, commented on the decision: "The courts’ definition of what is obviously violating is however extremely broad and the duty to act is expanded to deactivation of the entire domain even if only one file or link is infringing... If left unchallenged, this decision would constitute an undue expansion of the legal obligations of each registrar based in Germany, endangering the entire business model of registering domain names or performing DNS addressing for third parties". One can agree with Mr. Greimann as to the onerous nature of the new duty imposed on registrars, especially when considering the vagueness of the duty and the potential numbers of websites which might infringe copyright in one way or another.

The Court did mention that the infringements in relation to h33t were "...obvious and easy to identify", potentially presenting registrars with protection in cases where infringements are not obvious or are a result of negligence or ignorance. The Court in this instance ordered Key-Systems to prevent the infringement; however what those measures are remains unclear to this writer. Even though the domain is shut down by Key-Systems, its transition to another service outside of Germany can be said to be quick and painless - making the duty to investigate and take action both onerous, and arguably frivolous, as infringers will merely change service providers if their activities can be said to be illegal. Through this Mr. Greimann's argument of it hurting German domain registrars could be said to carry some merit.

Secondary liability has been a hot question since peer-to-peer services have made infringement much easier, and websites which provide users with, for example, torrent links, have become abundant. Whether liability should be extended to all middle actors can be argued to be potentially damaging to the Internet and its function. This writer does not have much insight into German law specifically, and people who might want to hear Universal Music's general council, Mirko Brüß's, arguments can refer to his opinion post here (again in German only).

Source: Bloomberg

Retrospective - Intention to Use Trademarks

Often in business it pays off to preempt what might be the next big thing, especially when it comes to names. The right timing can yield quite the monetary results, even if such predatory practices could be argued to linger outside of what is acceptable. To limit the potential hoarding of signs which could be used as trademarks, most common law legislatures have enacted provisions preventing such practices, such as in the United Kingdom and Australia for example. Under such provisions a mark has to be used, or intended to be used, as a trademark for it to be eligible for protection as such. Without proper use, or the compulsion to do so, companies would hoard any and all marks they could, with no intent to use them, only to sue for infringement if others would use that mark even when they are not doing so themselves. Even with the existence of such provisions, the question still remains as to what counts as an intention to use in the absence of actual usage; a question which was subsequently answered in the 1980s.

The case in question is Imperial Group v Philip Morris & Co, decided in the very beginning of the 80s. This concerned the prior Trade Marks Act 1938; however the provision in question is still in the currently in force Trade Marks Act 1994, and would apply equally in relation to the more modern legislation. The case concerned the word "NERIT", which was successfully registered by Philip Morris. Their registration of the word was a result of an unsuccessful attempt to register the word "MERIT" in relation to tobacco products; a mark which was rejected due to it being a laudatory and thus, descriptive word. In their mind the registration of the word "NERIT" would be close enough to be used to enforce against any uses of the word "MERIT" should their competition adopt or use the word in relation to competing products. To further legitimize the mark, Philip Morris sold roughly 1 million cigarettes under the name "NERIT", although had no real interest in using the mark as a legitimate trademark aside from its potential use against anyone using the word "MERIT". Subsequently Imperial Group challenged the mark, having used the word "MERIT" in relation to their cigarettes, and the case finally ended up in the UK Court of Appeals.

Mark loved to dress up as a ghost

In its deliberation the Court of Appeals saw that Philip Morris' mark was merely a ghost mark, with no real intention to be used as a legitimate trademark, and was registered under bad faith, contrary to the Trade Marks Act 1938. For a trademark to be considered legitimate under the legislation it must be used "...in the normal course of trade", and not merely under the guise of use through the manufacture of a small batch in order to legitimize the mark or its use. What the plaintiff had was merely a ghost mark. To further illustrate the intent by the plaintiff in the matter, the Court saw that "[t]hey wanted to treat the word "MERIT" as if they had a copyright interest in it"; which they clearly did not have. The Court of Appeal in the end determined that the word "NERIT" was not registered bona fide, and clearly not used for a legitimate commercial purpose and therefore would not be allowed as a registered trademark.

As one can see the use of trademarks is complex, and predatory registrations are no longer allowed. Registration of ghost marks was common practice before the Imperial Group decision, and clearly the case illustrates a well-needed adjustment from those practices. Should frivolous marks, or unused marks, be allowed to be registered by anyone, their function as a badge of origin could potentially cease to exist, and would only serve as a means to prevent others from trading through legitimate marks. The Imperial Group case has been decided in a multitude of countries, such as Australia, with similar results, clearly showcasing the common law's position in relation to modern trademark law with regards to ghost marks.

Pornography and Copyright Law

Often overlooked by many as 'artistic', pornography and other adult materials still carry quite the value in today's society. An estimated 3000 dollars is spent every second on pornographic material, netting 13 billion dollars yearly on average. As such there clearly is huge value in the protection of adult materials, yet more often than not the material is dismissed due to its nature as a sexual work. Regardless of some prevailing attitudes towards pornography, I thought it would merit exploration as a protected work under copyright.

United States

Under US law certain works are protected under copyright, which include both motion picture works and photographic works, among which most pornographic materials are produced. The categories do not mention any exceptions for obscene works, and prima facie should include any and all adult materials, provided they do not infringe any other legislation relating to the protection of children for example. Whether pornographic materials were protected under copyright was a question that had not been unequivocally answered until the case of Mitchell Brothers Film Group v Cinema Adult Theater. In the case the Court of Appeal saw that "[c]reating a defense of obscenity [may]... actually frustrate the congressional purpose underlying an all-inclusive copyright statute". In addition to this, the Court saw that "[i]t will discourage creativity... Requiring authors of controversial, unpopular, or new material to go through judicial proceedings to validate the content of their writings is antithetical to the aim of copyrights. If the copyright holder cannot obtain financial protection for his work because of actual or possible judicial objections to the subject matter, the pro-creativity purpose of the copyright laws will be undercut". The position in the aforementioned case has been since affirmed in later cases, clearly showcasing that the judiciary has no intention to exclude 'obscene' materials such as pornography. The Court did not discuss any potential negative impacts that obscene materials could have, and arguably this does not merit much argument, as sex and sexual activities are inherently a part of human culture, and have been for as long as culture has existed. A line has to be drawn when the material crosses over to the territory of illegality, but "normal" pornography should be protected under copyright.

Ann Bartow has argued that Article 1 of the US Constitution could provoke more discussion as to the copyrightability of pornography, as the law's intention is to "...promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries", as one could argue that pornography does not promote the progression of useful arts. This writer would see that adult materials could just as well promote the useful arts, as sexuality and sex represent a side of humanity which is essential and necessary, both as arguably a form of art, and as a form of entertainment, bar the exceptions of illegal materials in such a category.

United Kingdom

In the UK the Copyright, Designs and Patents Act 1988 functions in a similar fashion to its US counterpart, although the precedent is still unclear as to the legislation's position in relation to pornography. In the case of Glyn v Weston Feature Film Company Justice Young, obiter, saw that potentially obscene works could be protected, such as the one in question in the case; however refused to do so as "[t]he episode described in the plaintiff's novel, and which she alleges has been pirated by the defendants, is in my opinion grossly immoral in its essence, in its treatment, and in its tendency". Arguably societal norms have changed immensely since the decision in Glyn, and immorality through sexual acts is not seen as wholly good or evil, especially in a more entertainment based medium such as pornography.

The Obscene Publications Act 1959 does provide some offenses relating to 'obscene' materials; however its potential impact on pornographic material is questionable. The CPS has provided some guidelines in terms of such materials, and clearly indicates it would only apply to "extreme pornography" or material containing children.

Conclusion

Similar views have been shown in other common law jurisdictions, and it can be argued that pornography is protected under copyright, bar some exceptions mentioned above. As the morals of society change, and the consumption of different forms of media evolve as well, whether adult materials will be fully accepted will remain to be seen. Some measures have been initiated in the UK to block pornographic materials, and the outcry goes to show just how important this topic is in the public mindset. Morality should not be wholly dictated by the legislature or the judiciary, and those decision should reflect society as a whole, not merely the values of a small part. Pornography and the law will keep on finding a balance, and it can be said the medium is here to stay, and protected under copyright.