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

[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 intellectual property and the public interest, published by the
Australian Digital Alliance. 
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September 2001
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[1] About this publication 
[2] MOCA: a superior legislative blend
[3] A code of conduct for Australian copyright collecting societies
[4] This year's DMCA. Meet the SSSCA.
[5] Copyright and search engines: a collision waiting to happen?
[6] 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/ipwjun01.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). 

Nothing in this publication constitutes legal advice. 

>[2] MOCA: a superior legislative blend

MOCA is the Music Online Competition Act, a Bill proposed for passage by the
US Congress by Virginia Democrat Rick Boucher (and not to be confused with
mocha, a 'choice variety of coffee' or coffee mixed with chocolate).

Representative Boucher has been one of the few Congressmen or Senators to
take a prominent stand in favour of fair use rights and against the
ever-greater expansion of intellectual property protection. 

He has introduced MOCA into Congress to protect the interests of consumers
and arists with respect to music online. 

His Bill would (among other things): 
	*	expand the current exception for music retailers (which
allows them to play songs in their stores) allowing them to use a central
server to serve multiple stores. It also extends this exception to online
music retailers such as Amazon;
	*	expand the ephemeral recordings exception for broadcasters
and webcasters allowing them to make multiple ephememal copies to suit a
variety of transmission formats. It would also allow the copying of
individual songs;
	*	alter the current musical broadcasting statutory licence
requiring royalties to be shared equally between artists and recording
companies; and that these royalties must be paid directly to the artists;
and
	*	assure non-discriminatory licensing of music online to
non-affiliated entities (currently the five major record companies have
split into 2 online music transmission blocs; this provision is designed to
force them to licence other musical sites so as to prevent an oligopoly from
developing).
Further information on the MOCA Bill can be found here:
http://www.house.gov/boucher/docs/moca-summary.htm

>[3] A code of conduct for Australian copyright collecting societies

Copyright collecting societies, organisations which collectively administer
various copyright rights on behalf of their creator or publisher members,
are not well understood by the public. Their operations have sometimes been
criticised for lacking transparency. 

For example, the House of Representatives Standing on Legal and
Constitutional Affairs conducted an inquiry into music licensing as "a
result of continuous complaints by small business (eg proprietors of shops,
hairdressers, doctors) and their representative bodies to Members of
Parliament and Government agencies about a licensing drive by the
Australasian Performing Right Association and, to a lesser extent, the
Phonographic Performance Company of Australia." One of the recommendations
of this Committee's report (which can be found at:
http://www.aph.gov.au/house/committee/laca/Inquiryincopy.htm) was that: "a
voluntary code of conduct for copyright collecting societies be developed in
consultation with the collecting societies, relevant Commonwealth Government
departments, user groups and other interested parties. The Code of conduct
should outline standards of acceptable licensing practices and activities."

The Government accepted this recommendation in its response to the
Committee's Report (the response can be found here:
http://www.ag.gov.au/publications/dstmfinalgovtresp.htm). As a result the
copyright collecting societies has produced a draft code of conduct for
copyright collecting societies. This code can be found here:
http://www.copyright.com.au/corporate/draft%20code%20of%20conduct.pdf

On 21 September, a wide variety of interests met in a moderated forum that
was quite productive to discuss this proposed code. Major points of interest
included exactly how a dispute resolution process might work (and whether
one should be mandated across the copyright collecting sector) as well as if
and how non-collecting society interests might be represented on the code of
conduct compliance committee.

Comments on this code of conduct are still being accepted but be quick. The
deadline for final comments is 5 October. Comments can be sent to APRA
(www.apra.com.au). The ADA will also shortly be submitting further comments
on this document.

>[4] This year's DMCA: meet the SSSCA

If you follow copyright happenings around the world (or even if you just
follow technology news generally) you are probably aware of the Digital
Millennium Copyright Act. This US Copyright legislation from 1998 outlaws
certain types of technology regardless of their intended function and has
had a chilling effect on free speech by preventing IT security researchers
from discussing their findings. The DMCA has become intensely controversial
and will be challenged in the US courts.

In the meantime, a new contender has appeared for most dangerous piece of
copyright legislation, the Security Systems Standards and Certification Act.
This Act has been proposed by Senator Fritz Hollings of South Carolina,
Chairman of the powerful Congressional Commerce Committee. (Hollings also
happens to the one of the largest recipients of political donations from the
copyright industries).

The SSSCA, which has not yet been introduced into Congress, would provide
that: "It is unlawful to manufacture, import, offer to the public, provide
or otherwise traffic in any interactive digital device that does not include
and utilize certified security technologies that adhere to the security
systems standards adopted under section 104. "

An "interactive digital device" is defined as: "any machine, device,
product, software, or technology, whether or not included with or as part of
some other machine, device, product, software, or technology, that is
designed, marketed or used for the primary purpose of, and that is capable
of, storing, retrieving, processing, performing, transmitting, receiving, or
copying information in digital form." Commentators have pointed out that,
not only does this include all PCs and PC perihperals such as printers, but
also includes such things as computer-controlled ignition systems and
electronic sports scoreboards.

This means that any remotely digital device would have to have new
SSSCA-certified security technologies, designed to protect copyright
material, built into them. Industry is given 12 months to come up with
appropriate standards after which the Federal Government will step in to
mandate a standard. It is not presently clear how this copy-protection
technology will work.

This legislation has been branded as 'scary' by many outside the copyright
industries. To begin with, it would represent the final death of the Fair
Use doctrine: your own technology that you have lawfully purchased would not
permit you to make copies that you are otherwise permitted by law to make
(such as back-up copies of your hard drive). All unauthorised (by Hollywood,
that is) copying or communication of intellectual property would be
impossible. It would also prevent free copying of copyright material once
the copyright had expired. It may even be that these technologies might make
replication of your own work difficult. (It will be impossible to know this
until the security standard had been written in a process that involves no
public participation).

It has also been asserted that this legislation would make open source
software such as the Linux operating system illegal. This is because the Act
requires that all hardware and software include the required certified
security technology; obviously such technology would have to be hidden
and/or encrypted otherwise its removal would be a trivial matter. But in
open source software, all aspects of the software code must be publicly
available... So programmers writing their snippets of code at home would be
required, under pain of criminal penalty, to include security technologies
in their programs which they will not be allowed to see inside.

Senator Hollings himself seems to have become scarce and his office refuses
to discuss this proposed legislation. Hollywood though, is pleased. A
Vice-President at the Walt Disney Corporation (which helped to draft the
Bill) described it as "an exceedingly moderate and reasonable approach."

Others were not so sanguine. "It's about as egregiously an anti-technology
bill, in its draft form, as anything I've ever seen," said Jonathan Potter
of the Digital Media Association. "It would have the United States
government approving or disapproving every semiconductor, every server and
essentially any digital information technology device prior to coming to
market." 

Copyright scholar, Jessica Litman said: "This appears to be an attempt to
expand the concept to anything that has a microprocessor in it and to have
everyone agree or to have the government set technological standards that
will enforce copyright owners' preferences... Forgetting all the reasons why
this is bad copyright policy and bad information policy, it's terrible
science policy." 

It remains to be seen whether this legislation will be passed. As is often
the case with such proposed laws, it is a race against time. Will a
sufficient portion of the public learn about this law in time to stop it
being pushed through Congress by vested-interests?

The current draft text of the SSSCA can be found at
http://cryptome.org/sssca.htm .

>[5] Copyright and search engines: a collision waiting to happen?

Search engines, sites which index (a large part of) the web and then allow
the public to search this index using keywords, have become a vital part of
the Internet infrastructure. Without them, we're lost in a sea of millions
of unfindable websites.

But new functions that 'add value' to the serach process raise interesting
copyright questions. For example, the highly popular Google search engine
caches sites that it indexes allowing the searcher to go to a cached version
of that site if the original is down or slow to access. The cached version
is a reproduction normally made without explicit permission -- because it
would be impossible to get permission to copy billions of pages. And this
version exists long after the original may have gone. 

What if the original is a newspaper article that is displayed free for a
short period when current but is then shifted into a pay-per-view archive
(something which is not uncommon with some online news sites)? In this case,
the free unauthorised cache would be competing with the commercial
archive...

A recent case reported by the New York Times suggests that copyright and
search engines may well be on a collision course. ('Do Search Engines
Expedite the Theft of Digital Images?' at
http://www.nytimes.com/2001/09/06/technology/circuits/06IMAG.html ).

In this case, a photographer, Leslie Kelly, sued an image search engine,
Ditto.com, because of its practice of making thumbnail copies of images that
it indexes and reproducing them as part of the search results it generates.
"Search engines take the work of artists, photographers and others and then
use them for their own commercial benefit," Mr. Kelly said.

Kelly's point of view was rejected by a District Court judge who found that
the use of Kelly's photographs was a prima facie infringement of copyright
but was covered by the Fair Use doctrine (there would be no such saving
provision in this country). Kelly then appealed the matter to the 9th
Circuit Court of Appeals and there is no decision as yet.

It will be interesting to see how the courts handle this issue as the search
engines expand their services to do increasingly more with the copyright
material that they index. Will they find that the sheer usefulness of such
services outweights any possible harm to copyright owners? (After all,
serach engines benefit creators by allowing their audience to find them). Or
will the courts find that serach engines go too far in facilitating
copyright infringement?

>[6] 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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