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Thursday, June 28, 2007


Lessig's Change of Course

It seems to be the time for leaders of Houses of Commons to be moving on. British PM Tony Blair has just stepped down, with Gordon Brown taking over as the leader of the UK House of Commons (you know, the real one). However, this House of Commons would like to add its voice to the chorus of "thanks for everything" to one of the leaders of the free culture movement, Lawrence Lessig, as he shifts direction. Lessig has blogged about his change of direction here, and you can read the (currently) 142 comments that are already attached to that post if time permits. This House of Commons would probably not be in existence if it was not for the inspirational work of Lessig and we will follow the next stage of his career with a very keen eye (what Tony Blair does next is probably less relevant for the purposes of this blog, sorry).

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Monday, June 25, 2007


Copyright Agency Limited v State of New South Wales

Some readers may be aware of my interest in all-things-Crown copyright, so when the Full Federal Court of Australia handed down its decision in one of the very few Australian cases on Crown copyright a few weeks ago, I knew that I should get blogging. I realise that just saying the words 'Crown copyright' means that I may have lost some readers entirely, so let's go back to basics...

What's Crown copyright? Crown copyright is essentially government-owned copyright. This means that the government owns the copyright in those particular works, like a company might own copyright, or I own copyright in this blogpost. In addition to general works, governments also own copyright in legislation and case law that is produced by the Parliament or judiciary in that particular jurisdiction. Pursuant to Division 1 Part VII of the Copyright Act, Crown copyright subsists in:

In 2005, the now-dissolved Copyright Law Review Committee released a report on the Australian Crown copyright provisions and made a number of significant recommendations, including the repeal of sections 176-178 and that copyright in primary legal materials (and a number of other government documents, for example, certain Committee reports) be abolished. The Federal Government is yet to reply to the recommendations made by the Committee.

Is Crown copyright available everywhere? Many countries do not have Crown or government copyright: for example, in the United States, "copyright not available any work of the United States Government" (17 U.S.C section 105). This means that all government produced works, legislation, case law etc is technically in the public domain (with some scholars arguing that, because of this fact, the 'public domain' takes on an additional significance, because copyright law cannot impede the use and wider reuse of these materials.)

What was CAL v State of New South Wales [2007] FCAFC 80 about? In two words: surveyor plans. Pursuant to a number of NSW statutes, survey plans have to follow certain requirements in order to be registered in NSW. These survey plans are also reproduced for certain purposes by the NSW Government and stored in a database. CAL went to the Copyright Tribunal seeking a determination pursuant to sections 183 and 183A of the Copyright Act as to the amount of royalties that the NSW Government should have to pay to the copyright owners for use of particular plans. However, the State of NSW argued that it was the copyright owner under sections 176 (the plans were made under its direction or control) and 177 (it was the first to publish the plans, therefore, under this section, it owned the copyright). The case was referred to the Federal Court of Australia, where the Full Bench made a determination.

What did the Court find about Crown copyright? The Federal Court found that Crown copyright did not subsist in the survey plans in question under either section 176 and 177. Therefore, the Crown did not own the copyright in these particular plans.

Does that mean the State of NSW lost? The Court found that while Crown copyright did not subsist in the plans, the State was entitled to a licence, beyond what was permitted under section 183 of the Copyright Act, allowing it reproduce and communicate the plan in question to the public. The Court found that the “State is licensed to do everything that, under the statutory and regulatory framework that governs registered plans, the State is obliged or authorised to do with or in relation to registered plans.” (at 158).

What was interesting about the case? To me, the glaring omission was the fact that the court did not discuss the recommendation of the CLRC in its final Crown Copyright report that sections 176 and 177 actually be repealed. There are two issues here. First, it is understandable that the Court may have been reluctant to engage in any discussion of whether the Federal Government should or should not repeal these provisions given that the Government is yet to respond to the review. Second, however, the Court did not even mention the fact that the CLRC had conducted a review into Crown copyright and made a recommendation regarding these provisions. While some may consider that irrelevant to the current point at hand, it seems to me that if you are discussing provisions of the Copyright Act that might not be around in a year, it may be worth mentioning that fact.

Will the decision be appealed? According to this CAL press release, "CAL is considering the decision and will decide on our next move in the next few weeks." Let's all chant softly, "High Court! High Court! High Court!"

How do you know all this?
Copyright Agency Limited v State of New South Wales [2007] FCAFC 80 (5 June 2007)
"Court decides surveyors own copyright in maps and plans", CAL News Release.
Catherine Bond, "Reconciling Crown Copyright and Reuse of Government Information: An Analysis of the CLRC Crown Copyright Review", (2007) 12 Media & Arts Law Review (forthcoming), available on SSRN as part of the UNSW Faculty of Law Research Series here.

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The Essence of Canberra - House of Commons Style

A few weeks ago Catherine and Abi went to Canberra to attend the ANU College of Law 'Outlaws' Postgraduate Research Conference. Before we left we warned you, our kind readers, that blogging would be temporarily suspended and promised to include some photos that captured 'the essence' of Canberra (see post here). And here's a few to get you started...

We have recently discovered that this is the National Carillon (excellent photography by Catherine Bond).

Catherine was keen to get a new job at the High Court but was told by a security guard that the position of Chief Justice was not yet available (but he took her name for future reference - or possibly - to keep her out in the future).

Finally, as you can tell by the expression on Abi's face- Canberra can be downright joyful (despite the cold)!

If anybody feels that our photos do not truly reflect the essence of Canberra, Matthew Rimmer has kindly suggested the following places:
After this post however we may not be allowed to leave the House of Commons for some time - so we hope that one day we will be able to visit these sites...

(Pictured: "Cath's shot of the Carillon", "Cath at the High Court" and "Joyful Abi", Catherine Bond, Pictures available under either a AEShareNet Free for Education license or Creative Commons License Creative Commons Attribution 2.5 License.)

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Saturday, June 23, 2007


Griffiths Sentenced

Hew Griffiths has been sentenced to 51 months in jail for conspiracy to commit criminal copyright infringement. According to this report on Ninemsn, US Attorney for the Eastern District of Virginia Chuck Rosenberg has warned that "for those inclined to steal Intellectual Property here [the United States], or from halfway around the world, they are on notice that we can and will reach them." More on this over the next few days.

Update: Additional news about the story is starting to hit the mainstream media. According to a Sydney Morning Herald report, US District Court Judge Claude M Hilton took account of the fact that Griffiths served 3 years in Australian prisons, so he will only seve 15 more months (in a United States prison). This puts to rest fears that Griffiths had expressed to his father that the judge would not take into account those three years served in jail prior to his extradition to Virginia (see those here).

It's been quite interesting actually to see how our local news media handled the story. Just after the sentence was announced the Sydney Morning Herald picked up this AFP story about the case, titled "Briton sentenced to 51 months prison in US for internet piracy." Griffiths is in fact British, having never gained Australian citizenship after arriving in Australia aged 7. Both the mainstream Sydney Sunday newspapers, The Sun-Herald and the Sunday Telegraph picked up the story with the Sun-Herald story reproduced on the Sydney Morning Herald site here. So the case has been getting coverage, although perhaps not as much as might be expected, given that this was a case involving 1) extradition to the United States and 2) jail sentences for copyright infringement.


Tuesday, June 19, 2007


Software Freedom Day 2007

Last year the House of Commons housemates took part in Software Freedom Day 2006, which, as the name suggests, is a day dedicated to the celebration of software freedom and the promotion of all things free and open source software. This year Software Freedom Day will be held on Saturday 15th September and for those interested in finding out more - either as a participant or attendee - see the Software Freedom Day 2007 page here.

83 teams worldwide have already registered, in places including our hometown of Sydney (with the team headed up by Software Freedom International President and House of Commons friend Pia Waugh), Nigeria, Mexico, Peru, Italy, Scotland and the United States (just to name a few - and with the deadline to register not until 31 July expect that list of locations to grow!)

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Monday, June 18, 2007


Griffiths To Be Sentenced This Week...

I know that many readers have been following the Hew Griffiths case, both via this blog and the mainstream media (see our previous posts here and here). For those readers unfamiliar with the case, Griffiths was arrested at his home in New South Wales in 2004 and extradited to the United States for criminal copyright infringement. Under the name 'Bandido' Griffiths was "the brains behind the international counterfeit software ring called DrinkOrDie." (from The Sun-Herald here). Griffiths was one of the first extraditions for intellectual property infringement.

According to reports in The Sun-Herald yesterday, Griffiths will definitely be sentenced this Friday. Further, it is also reported that there has been a plea bargain, which means Griffiths may/will get a reduced sentence. If you are interested in the Griffiths case, we will have a fuller discussion of the case when his sentence is handed down.

Update: Griffiths is also discussed in the context of extradition of individuals by the United States in a Sydney Morning Herald opinion piece by Mark Coultan. As Coultan notes, the Griffiths case "is trumpeted as a victory for US authorities battling software pirates around the globe but it has raised concerns about the reach of American law and the Australian Government's penchant for allowing the US to deal with Australian citizens." Read more here.

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Friday, June 15, 2007


Free downloads = more $$$$?

Yet another example where a less restrictive approach to copyright protection has opened new doors for revenue:
"The ABC is finalising plans to re-sell The Chaser's War on Everything to overseas TV networks.

The satirical show has grown an international following thanks to the ABC's policy of allowing its shows to be accessed for free through its website and uploaded to video sharing sites like YouTube." (Offshore interest for Chaser's stunts, SMH, 13 June 07)"


"Gibson added that ABC's decision to make the show available as a free download from its website had actually increased, not threatened, sales of the show on DVD.

This contrasts with the views of most commercial networks, which go to extreme lengths to control the distribution of their content."

Incentive for other networks to consider alternate business models.

The fact that more and more people have been watching the show due to improved accessibility (as easy as hitting 'download') increases the audience of consumers interested in purchasing DVDs (with better quality, deleted scenes, commentary etc- all value adding) not to mention a host of other merchandise (books, clothes etc) and revenue from advertising placed on the show's website.

The success of the model will vary depending on the show (ABC is a public broadcaster). However, it is definitely an approach that should be more widely considered.

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Linus on freedom and GPLv3

This e-mail from Linus Torvalds was really interesting to read. Linus likes GPLv2 for GPLv2, not for the FSF foundation that it's built on. And that's a hard viewpoint to argue with, because FSF pushes GPL not only based on its freedoms, but also on its GPL-compatibility (after all, how could you make the Linux kernel so successful without making it GPL?), and also its technical correctness (with GPL, like no other free software license, you know what you're getting, and that it works).

Selected quote:
"You're acting like some Alice-in-Wonderland character, saying that your definition of words is the only one that matter. And that others are "confused". Read up on your humpty-dumpty some day."

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Tuesday, June 12, 2007


Facebook: The Final Frontier?

Social networking websites continue to gain momentum, with Facebook arguably the latest site to crack the social networking market. Brigid Delaney, in a Sydney Morning Herald piece, is in turn the latest writer to question the validity of social networking sites. She asks the particularly apt question: will "social networking sites will breed a generation of emotional illiterates?"

Delaney doesn't cover the legal issues raised by sites such as Facebook, but this video raises all sorts of worrying privacy aspects (Hat Tip: Technollama). I have to admit that I don't have a Facebook page, but perhaps the fact that I blog will put me into the category that Delaney suggested above.


Friday, June 08, 2007


Tintin v. The Copyright Amendment Blob

Bill Leak, cartoonist with The Australian, has been depicting Labor leader Kevin Rudd as Tintin since December 2006. Late last week, Moulinsart, (the firm controlling the copyright of the late Herge, creator of Tintin) based in Brussells threatened to sue Leak over his use of Tintin.

Luckily for Leak, the recently introduced section 41A of the Copyright Act contains a fair dealing exception for the purposes of parody and satire. In light of this, most experts predicted that Moulinsart would not succeed if it decided to take action.

Moulinsart eventually conceded that Leak is free to portray Kevin Rudd as Tintin (yes, the Copyright Amendment Blob won this fight) but threatened to sue if he continued to make the images available for sale via The Australian website (but the war continues). Apparently Leak responded to Moulinstart's letter by saying "I'm not a lawyer, I'm a cartoonist. I poke fun at people for a living. I'm sure Herge would have approved" (source).

A representative for the firm claimed:
"We have no problem with him using Tintin as a parody in his cartoons in the newspaper but when he starts selling them to the public then it becomes more commercial than editorial and he is infringing copyright.... It is passing those cartoons off as something they are not, as something official. He is not permitted to make those sales so we want him to stop doing that and to compensate us for any past sales. Our job is to promote and protect Herge's work and we are very serious about this." ("The Bleak side of Tintin'", The Australian, June 4 2007)
Somehow, I think the many references to Australian industrial relations policy and John Howard might give away the fact that the cartoon isn't quite 'official'. After all, the real Tintin never actually came to Australia.


"Satire, with apologies to Herge", The Australian, June 1 2007
"The Bleak side of Tintin'", The Australian, June 4 2007
"Tintin lives on in Leak'toons" The Australian, June 4 2007

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Monday, June 04, 2007


Blogging Temporarily Suspended...

Our blogposts on the House of Commons will be temporarily suspended for a few days while Abi and I road trip to the nation's capital to attend a conference at the Australian National University Faculty of Law on 'Outlaws'. One of the issues that I will be speaking about is the similarities and differences between Hew Griffiths and David Hicks that Abi blogged about earlier in the year here. After the conference I plan to blog about the issue a bit more, especially since Griffiths's sentence will be given soon, so stay tuned.

Regular blogging will probably commence again next weekend or early next week at the latest. And we promise to license and upload to Flickr any photos we take that capture the true essence of Canberra.

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GPLv3: Last Call Draft Released

The 'last call' draft for GPLv3 has just been released. If you are interested in commenting, then do it quickly: interested parties have 29 days from 31 May 2007 to provide feedback to the Free Software Foundation, with the absolutely final GPL version 3 due out on Friday, 29 June 2007.

If you are looking for further information, then see:

FSF Releases 'Last Call' Draft of GPLv3 press release here
Richard Stallman's essay on 'Why Upgrade to GPL version 3' here
The Actual Last Call Draft here


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Friday, June 01, 2007


The Day That DRM Died?

About two months ago we joined the blogosphere in writing about the decision of EMI and Apple to sell digital rights management-free music on the Apple iTunes Music Store (read that post by housemate Ben Bildstein here). Now, those DRM-free tracks have just become available on the iTunes music store, in a section titled "iTunes Plus": see the Sydney Morning Herald report here.

The DRM-free tracks retail at $A2.19, 50 cents more than the DRM-ed songs that retail at $A1.69 and according to Apple these songs are better quality. For those cursing the fact they've bought an EMI song with DRM but could now get it DRM-free, Apple has stated that where the DRM-free track is available, users can "upgrade existing purchases" by paying the extra 50 cents for the song or about $5.10 for an album.

Will this be the day that DRM died? I have to admit I'm not sure, and it will be interesting to see whether iTunes Plus is as popular as Apple's other products (iPods) and services (legal downloads!), although all signs point to yes.

(Author's Note - A Google search reveals that many individuals are asking whether this decision by Apple and EMI is the "day that DRM died". Seems as though all of us bloggers instantly thought of those immortal American Pie lyrics!)



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