[LINK] February 2001: The ADA Monthly Intellectual Property Wrap-Up

[Nick Smith]

The ADA Monthly Intellectual Property Wrap-Up
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A monthly summary of recent legislation, cases, reports and other events
relating to Australian intellectual property and the public interest,
published by the Australian Digital Alliance.
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February 2001
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[1] About this publication
[2] Parallel importation legislation introduced
[3] Countdown to Digital Agenda commencement
[4] The end of Napster?
[5] Libraries weigh in on Tasini v New York Times
[6] Federal court victory for 'The Panel'
[7] Domain name interim report
[8] I can copy, right?

>[1] About this publication

This summary of recent IP (but chiefly copyright) happenings of relevance to
Australia is published every month by email and on the Australian Digital
Alliance website at http://www.digital.org.au/issue/ipwfeb01.htm. If you
have any suggestions as to what should go in the next issue, please let the
Nick Smith know by email: (nsmith@nla.gov.au).

>[2] Parallel importation legislation introduced

28 February saw the Copyright Amendment (Parallel Importation) Bill 2001
introduced into the House of Representatives.  This Bill can be found on the
Parliamentary website (www.aph.gov.au -- go to 'Legislation').

This Bill will remove parallel importation restrictions on 'computer
software products, including interactive computer games, books, periodical
publications (such as journals and magazines) and sheet music'. This will
mean that anyone will be able to import lawfully-made copies of such
material for commercial sale from wherever they can be sourced around the
world. The importation of pirate material (copies made without the
permission of the copyright owner) will still be illegal.

This Bill, once passed in the House of Representatives still has to go to
the Senate where it is not guaranteed passage. If it does make it into law,
the new importation provisions will commence one year after signature by the
Governor-General.

This legislation follows the passage of 1998 legislation which permitted the
parallel importation of compact discs.

>[3] Countdown to Digital Agenda commencement

The Copyright Amendment (Digital Agenda) Act 2000, the biggest overhaul of
the Copyright Act since its enactment, commences on 4 March 2001. Many
interested groups prepared themselves for its passage. One sign of things to
come came in the form of a message from Grant Bayley of the hackers' group
2600 Australia.

Grant had previously hosted the device DeCSS on his sites. (DeCSS is a tool
to allow users to view DVDs on PCs running operating systems other than
Windows (such as Linux) by circumventing encryption. Copyright owners claim
it is a criminal device designed to aid DVD piracy and are engaged in legal
action with 2600 in the US over DeCSS). He announced that he would be taking
down DeCSS because of the threat of legal action (even criminal prosecution)
which he does not have the resources to fight.

Grant and many other people feel passionately about their right to use
whatever technology they like. As he said:

"Finally, I'd warn commentators that will inevitably try and deal with this
issue again in a week or so (there was some comment today in SMH and
Australian IT) that this issue cannot be compared to the plight of Napster.
One audience downloads content at zero cost to them (even if only to sample
it) - the other buys their content from a regular store at full price and
just wants to watch what they have paid for on a player of their choice and
using whatever computer operating system they choose. BIG difference."

>[4] The end of Napster?

Planet Earth's biggest copyright news story took a dramatic turn this month
when the United States Court of Appeals for the Ninth Circuit largely found
against the famous music-swapping site. 'The panel [of judges] agreed with
the district court that the record companies presented a prima facie case of
direct copyright infringement by Napster users. The panel also agreed with
the district court's rejection of Napster's affirmative defense that its
users are engaged in fair use of the copyrighted material.'

The court also 'upheld the district court's conclusion that Napster may be
secondarily liable for the direct copyright infringement under two
doctrines: contributory copyright infringement and vicarious copyright
infringement.'

The case was sent back to the district court for Judge Patel to modify her
original injunction against Napster (which was overly broad). Once this
injunction is in place, it's the end of the line for Napster and presumably
Napster's users will drift off to other systems that are less subject to
legal control such as Gnutella.

In an attempt to forestall its demise, it offered the record companies a
settlement figure of $1 billion US dollars. The record companies are yet to
respond.

The 9th circuit's opinion can be found at:
http://www.ca9.uscourts.gov/ca9/newopinions.nsf/04485f8dcbd4e1ea882569520074
e698/998c4fac8b2b2708882569f1005fa015?OpenDocument

>[5] Libraries weigh in on Tasini v New York Times

American library groups have filed a Friend of the Court brief in support of
Jonathan Tasini, a freelance writer and President of the National Writers
Union who has sued the New York Times for publishing his work electronically
without his permission. The NYT claimed that when Tasini and other writers
sold their work they also granted permission for the work to be commercially
exploited by publishers in electronic databases without the writers
receiving a cent. The case is soon to be heard by the Supreme Court.

The publishing industry has claimed that if it loses it will have to delete
its electronic databases of articles and libraries will have to treat their
collections similarly. However, American library groups have strongly
disputed this.

They echo the writers' position that no deletion of work is necessary,
simply that the free-lancers be compensated for the on-going use of their
work.

More information:
The (US) National Writers' Union site: http://www.nwu.org/tvt/scbriefs.htm

>[6] Federal Court victory for 'The Panel'
'The Panel', Channel 10's occasionally amusing chat show, lived to quip
another day after successfully resisting a law-suit from the Nine Network.
Nine argued that the Panel's practice of showing short clips from the
programming of other networks (notably Nine) constituted infringement of
copyright.

The Federal Court found that the clips were not 'substantial' (and therefore
broadcasting them could not be an infringement). As a result,he defence of
fair dealing was not required. However, Justice Conti gave the view that
'that had it been necessary for me to decide upon such defences [fair
dealing for criticism or review or reporting the news], I would have upheld
either one or both of such defences in relation to eleven out of the twenty
programmes involved, and would have rejected the same in relation to the
remaining nine programmes.'

>[7] Domain name consultation report

In its second public consultation report, auDA's Name Policy Advisory Panel
has refined its proposals in relation to two important questions - who is
eligible to obtain a domain name in the .au domain space, and what domain
name can they have? (Domain names are web names such as
www.this-is-a-domain-name.com.au auDA is the regulatory body which oversees
their use in Australia).

The second report can be found at: http://www.auda.org.au/panel/name/
Briefly, it recommends that there be a direct connection between the domain
name sought and the person seeking that domain name; typically this
connection must be the name of a natural person (including a nickname) or a
trade mark. The Advisory Panel also recommended against opening up generic
names for use as domain names (generic names as www.wine.com.au). Public
input on such issues is sought by 16 March 2001.

The Advisory Panel also suggested that many of the problems that parties
identified with the domain name system (and echoed by the ADA in its
submission) could be alleviated by the creation of new 2nd level domains.
Such 2LDs would better allow individuals and non-profit groups from access
to the domain name system and prevent them from being excluded by commercial
interests.

The Advisory Panel undertook to consult separately on this issue, beginning
in April 2001. 

>[8] I can copy, right?

Yes, you can copy this publication. Feel free to send it to friends or
colleagues, print it off or even archive it on your website provided that
all text is included or, in the case of an excerpt, appropriate credit is
given.

--
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Nick Smith
Executive Officer  ::  Australian Digital Alliance  
Copyright Advisor  ::  Australian Libraries Copyright Committee
PO Box E202   \\   Kingston ACT 2604
Ph: 02 6262 1273   \\   Fax: 02 6273 2545
Email: nsmith@nla.gov.au   \\   Web: www.digital.org.au
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