The House of Commons

OMG! IceTV Won!! (6-0!)

2009-04-22T11:04:00.010+10:00

According to a press release on the IceTV website, IceTV have won in the High Court!!!

IceTV's General Manager, Matt Kossatz notes:

“Today’s decision is the news that we (IceTV), our staff and our loyal subscribers have waited 3 long years to hear. We would like to thank everyone for their continued support.”

UPDATE: THE HIGH COURT DECISION IS AVAILABLE HERE (6-0!). We will read and digest the judgment and get back to you!

More information about the case's history is available in our last few posts about IceTV here and here.

What's Coming Up At the UIP 2009 Conference

2009-03-30T10:10:00.002+11:00

It's got to be something good to get me out of my current thesis hibernation and this definitely is - here are a few more details on the upcoming Unlocking IP conference!

Unlocking IP 2009 Conference –
National and global dimensions of the copyright public domain

16-17 April 2009 - UNSW Sydney

UNSW's Cyberspace Law and Policy Centre invites you to register now for an international conference from the 'Unlocking IP' ARC research project, which investigates how Australia's digital commons, both the public domain and public rights created by open content and open software licensing, can be expanded and protected. It focuses on 'self help' actions within the existing statutory context, in Australia's distinct legal and cultural context, and on comprehensiveness - we offer preliminary results from the first survey of Australia's digital commons, with data from National Library of Australia.

The conference includes reports and case studies from the front line, where new models for sharing and trading intellectual property meet the reality of business, government and educational demands, new technological opportunities and lessons learned from implementation of licences like Creative Commons and Free for Education. Book publishing under hybrid business models at Sydney University Press, online user generated content using Wikimedia, and international initiatives like the US' Reboot.gov and China's IP abuse rule are featured, alongside detailed analysis of emerging legal and policy directions.

A highlight of the conference will be the launch of the 2009 Consumers International IP Watchlist. Arising from the CI Access to Knowledge project, the list identifies countries whose IP policies and practices are harmful to consumers. It is used as a counterbalance to the United States' "Special 301" Report, which is an annual report highlighting countries that supposedly do not provide strong enough protection for the interests of US intellectual property owners.

The venue is Law Faculty of UNSW, Kensington Sydney, close to beaches, parks and Sydney CBD.

Details of speakers and the program are here.
Register here!

See you there!

Conference: International Society for the History and Theory of Intellectual Property

2009-03-24T08:52:00.004+11:00

From Professor Kathy Bowrey:

Forthcoming ISHTIP Conferences

First Annual ISHTIP Workshop:
The Construction of Immateriality
Practices of Appropriation and the Genealogy of Intellectual Property
Bocconi University,
Milan Italy
26-27 June 2009

Call for Papers is here and Conference Information here

Unlocking IP Conference - Registrations Now Open

2009-03-19T15:23:00.004+11:00

Sophia blogged earlier about the upcoming Unlocking IP Conference 2009.

The registration form and draft program is now available.

Hope to see you there!

Unlocking IP 2009 Conference: "National and Global Dimensions of the Public Domain"

2009-03-02T13:57:00.002+11:00

The UNSW Cyberspace Law and Policy Centre will be hosting the 3rd ‘Unlocking IP’ Conference at the University of New South Wales, Sydney, from 16-17 April 2009.

A registration form will be available here shortly.

The Conference will include both invited and submitted presentations. We invite proposals for papers relevant to the theme of the Conference. Please refer to the Conference Call for Papers page for details. The deadline for submission of full papers or extended abstracts is March 4, 2009.

Digital Britain Report, revisited

2009-02-06T14:06:00.003+11:00

Last week I wrote a very short post about the interim Digital Britain report. But I've been reading more of TechnoLlama's analysis, and it's... not very positive. At all. I'm sure I gave the impression last week that the British government was being progressive with this, but then I read Andres Guadamuz's latest post. So that this blog post isn't too short, I'll quote a paragraph:

Continuing with the coverage of the interim Digital Britain report, something has been bothering me since I read it, so I went back and browsed through it again until I realised what it was. According to the UK's chief technology policy-makers, we still seem to be living in the 20th century. Why? Several reasons: the only mention to Web 2.0 is in the glossary; some of the technologies being pushed are proved failures with the public; it believes DRM offers a solution to piracy; it blatantly ignores the content delivery revolution that is about to take place; but most importantly, it ignores user-generated content by insisting on the outdated view of the top-down content provider.

The True History of Copyright - Policy Observations

2009-02-03T12:36:00.006+11:00

I just found, picked up, and perused The True History of Copyright on housemate Bond's desk (see her original post here). Ben Atkinson has done a lot of research into the context in which our copyright laws have been made. I haven't read it all, but just looking at the contents I was interested by the last chapter: Chapter 15 - Policy Observations. These observations are of particular interest to me because it's something I will be addressing in my thesis. But I still thought they were of general enough interest (at least to readers of this blog!) that I'd share the headlines with you:

The Berne Convention precipitated the creation of modern copyright law
Early legislators tried to qualify the scope of copyright
20th century legislators paid little attention to the question of incentive or production
Copyright does not confer an automatic right of remuneration
Legislators did not try to "balance" the interests of owners and users
Copyright legislation regulates taxation in gross of non-commercial (or non-competing) users to the detriment of public welfare
The structure of the Australian Copyright Act reflects sectional interest
Public interest considerations were raised consistently in policy and legislative debates
The pursuit of authors' rights led to the creation of analogous producers' rights
Copyright protection did not cause the economic success of the copyright industries
APRA's revenue demands led to the creation of Article 11 bis(2) of the Berne Convention and the Australian Copyright Tribunal
The record industry asserted the mechanical performing right opportunistically
The role of individual agency is underestimated in analysis of copyright
The commercial struggle for control over the broadcast of sport precipitated the Gregory Committee enquiry
The origins of Australian copyright policy orthodoxy lie in the Spicer Report and the second reading in the Senate of the 1968 Copyright Bill
The parallel importation provisions of the Australian Copyright Act were carried over from imperial legislation
Australian legislative debate has seen two great statements of principle: the first over the posthumous term and the second over import controls
The content of the modern copyright law of Australia is the entire creation of international conventions and British precedents
Doubts over term persisted at the official level until the 1950s

I suppose the above list is pretty much a summary of the conclusions of the book. Of course there are 422 pages leading up to those conclusions, and the conclusions are 19 pages longer than I've presented them above. That is, these statements are supported by significant in-depth research.

Should we change the law? or the prople?

2009-01-30T13:38:00.004+11:00

Via Jessica Coates, I quote directly:

Those interested in digital copyright policy might be interested in the UK's Department of Culture, Media and Sport's 'Digital Britain' Interim Report, which was released this week.

http://www.culture.gov.uk/what_we_do/broadcasting/5631.aspx

Section 3.2 seems particularly relevant:

'There is a clear and unambiguous distinction between the legal and illegal sharing of content which we must urgently address. But, we need to do so in a way that recognises that when there is very widespread behaviour and social acceptability of such behaviour that is at odds with the rules, then the rules, the business models that the rules have underpinned and the behaviour itself may all need to change.'

It also recommends the creation of a Rights Agency to:

'bring industry together to agree how to provide incentives for legal use of copyright material; work together to prevent unlawful use by consumers which infringes civil copyright law; and enable technical copyright-support solutions that work for both consumers and content creators. The Government also welcomes other suggestions on how these objectives should be achieved.'

I like the idea that the Government might not just be about maintaining the status quo. I often feel that the 'majority opinion' concept is ignored (not only in the field of copyright).

More linux.conf.au

2009-01-22T12:11:00.002+11:00

I'm still at linux.conf.au, attending the talk "Seven things lawyers don't understand software." It's good, but not quite as entertaining as the previous talk, where the speaker was dressed in a Star Trek uniform, and made an absolutely brilliant analogy between Klingon culture and Perl, and talked about a Perl module (called autodie) that aims to bring Klingon culture to Perl.

Time for a Break

2009-01-20T14:06:00.003+11:00

This morning I emailed my House of Commons housemates with some news, that they in turn encouraged me to share with you: I am stepping down from the House of Commons for a while while I finish off my thesis. I'm about four months away from submitting my thesis (I think!!) and it's a very funny feeling - it feels like all of a sudden three years have passed and you have a limited amount of time left to deal with this thing that has dominated so much of your life. When I got back to work after the New Year it was interesting reading all the posts on other blogs about January 1 being 'Public Domain Day' - every day is public domain day for me at the moment.

I thought about writing a final post musing on copyright and the commons, but currently I'm working on my chapter on colonial copyright, and I'm looking forward to getting back to it. And if I was going to muse on any topic it would be that: colonial copyright, or historical copyright issues. When I started my PhD a little under a three years ago, I knew that my thesis would involve 'mapping Australia's copyright commons' - that is its (current) title after all - but it wasn't until I started looking at the various colonial statutes, and then the Copyright Act 1905 (Cth) that a number of distinctly Australian issues began to emerge. In the end, I think I've ended up writing about 10 percent of what I originally planned to, because so many different issues came up from these older statutes that are still relevant to, and have an impact on, the Australian public domain and the creations contained within that space today.

I won't go into the details of this now; with the upcoming Unlocking IP 2009 conference coming up, that is a more appropriate forum. So I'll finish off with a few thank yous...to my fellow housemates Abi Paramaguru, Ben Bildstein and Sophia Christou, who will fill you in on all the juicy copyright gossip during my absence; my supervisors, Kathy Bowrey and Graham Greenleaf; and to you, our wonderful readers, for your support and engagement with our blog.

I'll be back at the House of Commons in June, look forward to writing to you all then!

P.S. There is, of course, one exception to my blogging vacation: if the Federal Government responds to the Copyright Law Review Committee Crown Copyright report. Will we get to four years without a response...?

linux.conf.au 2009

2009-01-19T11:15:00.002+11:00

I'm at linux.conf.au at the University of Tasmania (my old uni), sitting next to Nic Suzor (who will give a talk on gaming+law later in the week), and listening to Pia Waugh talk about how to run an open source business.

And of course, being LCA, they have free (as in free beer) wireless.

I'll blog more, but possibly not today. I had to get up at 4:20am this morning, to drive my partner to the airport, and despite the two coffees I've had, my head's not entirely together right now.

Creative Commons Asia Pacific Conference 2009

2009-01-06T10:19:00.003+11:00

The 2009 Creative Commons Asia Pacific Conference will be hosted by the Arellano University School of Law, Manila, on the 5-6 February 2009.

Visit the Philippine Commons website for further information about the Conference, as well as other local CC developments and events.

Obama's transition website freely licensed... and the online commons quantification implications

2008-12-02T10:52:00.003+11:00

change.gov is the web site of Obama and Biden's transition to government, and they've licensed the content with a Creative Commons Attribution licence. Kudos.

But when I read about this on lessig.org, I went to change.gov and couldn't find any reference to Creative Commons. I looked at the HTML source and there was no reference to Creative Commons. It turns out that there is a page on the site about copyright policy, and this has a statement that covers all other pages on the site.

If this kind of licensing (having one page on your site that states that all other pages are licensed, and then linking to that page from all other pages on the site) is common (and I think it is), it means that just counting links to Creative Commons (or any other licence, for that matter) gives you a pretty bad estimation of the number of licensed pages out there.

As an example of what I'm talking about, consider the following comparison:

apsa.anu.edu.au, 230 pages linking to Creative Commons licences, of about 655 pages. (But please don't ask me which pages don't link to Creative Commons licences, because I can't figure it out. That would be another blog post.)
change.gov, 1 page linking to a Creative Comons licence, of about 432 pages.

So our naive methodology for quantifying the online commons - i.e. counting links to Creative Commons licences - says that of these two sites, which are about the same size, and are both wholly licensed with Creative Commons licences, the first one contributes 230 times as much to the commons as the second.

I beg to differ.

(For more on this topic, and some ways it can be tackled, see my paper from iSummit. And stay tuned for more.)

(via lessig.org, via reddit.com)

What does 'non-commercial' mean to you?

2008-11-26T17:45:00.002+11:00

From Creative Commons, originally posted by Mike Linksvayer:

As previously announced, Creative Commons is studying how people understand the term “noncommercial use”. At this stage of research, we are reaching out to the Creative Commons community and to anyone else interested in public copyright licenses – would you please take a few minutes to participate in our study by responding to this questionnaire? Your response will be anonymous – we won’t collect any personal information that could reveal your identity.

Because we want to reach as many people as possible, this is an open access poll, meaning the survey is open to anyone who chooses to respond. We hope you will help us publicize the poll by reposting this announcement and forwarding this link to others you think might be interested. The questionnaire will remain online through December 7 or until we are overwhelmed with responses — so please let us hear from you soon!

Questions about the study or this poll may be sent to noncommercial@creativecommons.org.

Some of the earlier questions are oriented towards content creators. I answered 'not applicable' to a lot of them. I thought the question that asks you to define non-commercial use was interesting. I'll share mine in the comments on this post, and I encourage you to do the same (so don't read the comments until you've done the questionaire!).

'CopyrightNews' on Delicious: a tagging cloud for copyright stories and resources

2008-11-21T14:00:00.003+11:00

[This is a guest post, written by David Vaile, Executive director, Cyberspace Law and Policy Centre -- Abi]

"The Delicious CopyRightNews account has been running for almost 18 months now, and has been growing bigger by the month. Not sure if I am finding more articles or copyright is becoming a more discussed topic!" This is a digesting service for mostly Australian copyright material, a useful example of social tagging to share access to a wide range of emerging commentary from diverse sources. It is apparently run by Vanessa Tuckfield, who is doing a review of it at present.

Stefani and baby Zuma pic released under a Creative Commons licence

2008-11-01T10:14:00.004+11:00

This is one for the young folks (and the media), and something a bit different too. From Eric Steuer at the Creative Commons blog:

Gwen Stefani and baby Zuma pic online under a CC license

Photo: Dennis Stefani, (c) Mrs. Me, Inc., 2008, made available under a CC
BY-NC-ND license

Pop star Gwen Stefani and her husband, rocker Gavin Rossdale recently
welcomed a baby, Zuma Nesta Rock Rossdale, into the world. Many celebrities
contract with a magazine to arrange an exclusive photo session that debuts
mother with newborn. But Stefani and Rossdale took a different approach and
hired their own photographer and put the photo online for the public under a
Creative Commons BY-NC-ND license, along with some additional terms that allow all print magazines, newspapers, and blogs to use the photo - even commercially, with some restrictions. You can download a high-res version of the photo (and check out the additional terms the photo is available under) at Stefani’s site.

(Section 32 of) The Copyright Act (is cool)

2008-10-30T17:07:00.006+11:00

Bond introduced me to the Copyright Act today (I never studied law, you see). It's got a section in it that's pretty neat from my perspective. Section 32, which I will summarise (this is probably very uncool in legal circles, to paraphrase like this, but I can 'cos I'm not a lawyer):

There is copyright in a work if:
The author is Australian; or
The first publication of the work was in Australia

Yeah, that's it with about 90% of the words taken out. Legal readers, please correct me if that's wrong. (I can almost feel you shouting into the past at me from in front of your computer screens.)

So to explain a little further, there's copyright under Section 32 in all works by Australian authors, and all works by any authors that publish their works in Australia before publishing them elsewhere. There's also a definition of 'Australian' (actually 'qualified person'), but it's not particularly interesting. And there's some stuff about copyright in buildings, and people who died, and works that took a long time to produce.

Anyway, what good is this to me? Well, it makes for a reasonable definition of Australian copyrighted work. Which we can then use to define the Australian public domain or the Australian commons, assuming we have a good definition of public domain or commons.

It's a very functional definition, in the sense that you can decide for a given work whether or not to include it in the class of Australian commons.

Compare this with the definition ('description' would be a better word) I used in 2006:

Commons content that is either created by Australians, hosted in Australia, administered by Australians or Australian organisations, or pertains particularly to Australia.

Yuck! Maybe that's what we mean intuitively, but that's a rather useless definition when it comes to actually applying it. Section 32 will do much better.

Thanks, Bond!

Open Education Workshop 2008

2008-10-30T13:39:00.003+11:00

(Via Pia)

The Australian Service for Knowledge of Open Source Software (ASK-OSS) supported by the New South Wales Department of Education and Training, is hosting a workshop to explore Open Education in teaching, learning and research across schools and universities. We invite you to participate in this strategic event where you will discover Open Education initiatives around the world, as well as help contribute to the direction of Open Education in Australia for 2009 and beyond.

Speakers include:

Dr Philip Long, MIT iCampus Project (now at University of Queensland)
Dr Cyprien Lomas, University of British Columbia
Raju Varanasi, Centre for Learning Innovation, NSW DET
Professor James Dalziel, Macquarie University
Delia Browne, National Copyright Director, MCEETYA

When: 21st of November, 2008 - 8:30am to 5pm
Where: MGSM, Macquarie University, Sydney
Cost: Free
Registration & Information see: http://www.ask-oss.mq.edu.au/

Copysquare and Konomark

2008-10-29T15:41:00.005+11:00

You know how sometimes you're not getting anything done and so even blogging about something you haven't thought about for a couple of months seems like progress? But I should have blogged about this by now anyway, and that's justification enough.

Back at iSummit '08, there was a presentation by Eric E. Johnson, Associate Professor at the University of North Dakota Law Faculty. In fact a full paper is available on the iSummit research track website, here.

You could read the full paper but I'm not expecting you to. I only browsed it myself. But I sat down for a while and talked to Eric, and his ideas were interesting. I think that's the thing that impressed me most about him. He was thinking outside the square (apropos, try to join these 9 dots with 4 straight lines, connected end-to-end; hint: start at a corner).

Hmm... I probably just lost half my readers, and I didn't even get to Copysquare and Konomark.

This is Konomark:

It's a way for you to say you're willing to share your intellectual property. It is not a licence. It is not a legal mechanism; it has no legal effect. It's the IP equivalent of this t-shirt. You don't want to grant an irrevocable licence to all, but if people ask you for permission to re-use or re-purpose your work, there's a good chance you'll say yes, and you certainly won't be offended that they asked. It's one brick in the foundation of a culture of sharing. I think Lessig would approve.

This is Copysquare:

Okay, that's just the icon. Copysquare is actually a licence. I'm not sure if it's fully developed yet, but it's close. It's main focus is for people who want to create small, quality creative works that can be included in larger productions, such as movies.

The example Eric gave is a cityscape scene in a TV show, where most of the show is filmed indoors, but there are these little clips that remind the viewer of the geographic location of the story. The show that springs to mind is House, MD. I'll quote Wikipedia:

Exterior shots of Princeton-Plainsboro Teaching Hospital are actually of Princeton University's Frist Campus Center, which is the University's student center. Filming does not, however, take place there. Instead, it takes place on the FOX lot in Century City.

Here's what Eric E. Johnson said to explain the licence (from his blog post about it, also linked above):

Copysquare uses three basic license provisions to pursue its aims: (1) a requirement of notification, (2) a right to reject, and (3) “favored nations” treatment.

He goes on to give this paraphrasing of the licence:

"You can use my creative work – film footage, picture, sound effect, etc. – in your creative work, but you must notify me that you are doing so (the notification provision), give me a chance to opt out (the right to reject), and you need not pay me or credit me, but if you pay or provide credit to others for the same kind of contribution, you must pay me and credit me on an equal basis (the favored-nations provision).”

So say you were the person who took that aerial shot of the Princeton Campus. You put your stuff on the web and copysquare it. Someone uses it in their YouTube videos, uncredited, not-paid for, but lets you know first and so that's cool. Someone else tries to use it in a McCain campaign add, and you assert your right to reject. And the production crew from House, MD., use it, tell you, credit you (because they credit others) and pay you (because they pay others). And everyone is happy, except probably not McCain because he is way behind in the polls right now.

I'm not the law expert, but if it works like this, I think it's pretty neat. I like the favoured nations idea: if you're producing a work on a shoestring budget, use my contribution freely; but if you're paying others, pay me too. Note that this is not in fact about whether your project is for a commercial product. It's about whether it's a commercial production. The idea, as Eric explained to me, is that you're happy for small time players, say independent film producers, to use your work. But if there are credits in that independent film, you want to be in them. And if Hollywood is going to use your work, you want a little something financially, just like everyone else working on the film is getting.

Damn, I thought this was going to be a short blog post. Well, I guess it was for those of you who got distracted by the nine-dots puzzle and stopped reading. (Didn't try? There's still time.)

A commons of copysquared material?

So around about when Eric was giving his presentation at iSummit, I was thinking about how to define 'the commons' (for my purposes). It was something I wrote about in my paper and talked about in my presentation. And I realised that by my definition, konomark and copysquare material weren't included. In fact it's how I came to talk to Eric, and I put it to him that copysquare wasn't a commons based licence.

No surprise, he accepted my argument (it was, after all, only an argument from definition), but we both agreed that this doesn't make copysquare any less useful. Anything that helps the little guy get noticed, get credited, get paid if his work is useful enough, and promotes sharing, has got to be good.

It seems to me that konomark and copysquare each fill a niche in the sharing space. In fact niches that, before iSummit, I hadn't realised existed.

Suzor on the ACTA Briefing

2008-10-28T12:35:00.005+11:00

Last Friday (24 October), the Department of Foreign Affairs and Trade held a public forum in Canberra on the Anti-Counterfeiting Trade Agreement (ACTA) (see Sophia's previous post here). While House of Commons housemates were unable to attend (conference papers, theses, Remix, oh my!), Nic Suzor has an excellent, substantial account of the forum on his blog here. Here's a taste:

Today I attended a briefing session on ACTA hosted by the Australian
Department of Foreign Affairs and Trade (DFAT). I felt it was a good meeting,
and I really got the sense that DFAT were interested in public participation.
There was a good deal of frustration on both sides of the fence – participants
expressed serious concerns about the lack of transparency in the negotiating
process, and DFAT consistently repeated that they were bound by confidentiality
agreements and could not divulge details of the draft text of the agreement.
Participants in the Tokyo round of negotiations agreed that the full text of the
agreement will only be made available after negotiations have been concluded and
the text finalised. Understandably, there were a number of members of the
audience who were hesitant to accept any of DFAT's assurances as to the content
of the agreement without access to the negotiation documents.

Overall, whilst I think that the process is far too secretive, DFAT appear
to have gone a long way to make available what they can, and they seem genuinely
interested in hearing from interested parties in Australia. Unfortunately, input
will be limited (blind) until negotiations are complete and the text finalised,
but DFAT assures us that they are considering the issues thoroughly and there
will be genuine opportunity to debate whether or not to sign at the end of the
process.

The big points I would take away from the meeting are:
Negotiations will go 'well into 2009';
The Commonwealth Government is not seeking to drive domestic changes through
ACTA.
Overall, there do not appear to be any great changes to Australia's
enforcement regime – it appears to be more focused on affecting other
states;
The Government intends to limit the effect of any treaty to trademark
infringement and commercial scale copyright infringement;
However, statutory damages for copyright infringement are on the table;
Next meeting, in December, will consider internet distribution;
Camcording is likely to be criminalised;
There's still time to make relevant submissions to DFAT – indeed, they
release a substantial amount of information once they receive the draft
proposals before every negotiation round;
DFAT has a copy of the Cutler report.

Interested readers should head over to Nic's site to read the rest (and also have a look at the outline of Nic's PhD on 'Virtual environments and digital constitutionalism' - looks as though it will be an immense contribution to this area).

Can I Remix Lessig's 'Remix'?

2008-10-26T11:32:00.016+11:00

Book Review: Remix: Making Art and Commerce Thrive in the Hybrid Economy, Lawrence Lessig (2008, The Penguin Press, USA).

While we all know the old adage to not judge a book by its cover, the cover of Remix is probably the best of Lessig's tomes to date, an attractive blending of pink and blue circles to create purple. So when I sat down on Thursday night with my white dust-jacketed hard-cover copy and opened up to the Tiffany-blue inside cover, I was a little surprised by what I read. The first line of the dust-jacket blurb states that "The author of Free Culture shows how we harm our children...". Snippets of The Simpson character Helen Lovejoy's recurring shriek came to mind, "Won't somebody please think of the children!" Perhaps this is an unfair comparison, but I admit I was a little perturbed by Lessig's framing his argument in such a way.

Still, I soldiered on with Remix and, overall, I was impressed by Lessig's latest contribution. Lessig frames his text in terms of the development of 'Read Only' culture, which dominated the 20th century and 'Read/Write' culture, which we are experiencing the beginnings of now, particularly with regard to user-generated content. As with his previous texts, Lessig draws on a number of examples to illustrate why we need to create a 'hybrid' economy that draws upon both the commercial and sharing economies. For the most part, Lessig is quite persuasive in his argument and, as always, writes in a non-legalistic way that many can understand.

Yet there are a few things that to me lessened the impact of the book. My criticisms of Remix are basically two-fold, and these won't bother everyone. The first is - and you can criticise me for stating this - the essentially all-American focus. Lessig talks about how we are damaging 'our children', when clearly this is really 'our children in the western world with access to a computer'. This may seem an unfair criticism; not every book needs to address the disparity between developed and developing countries and Internet access, but Lessig does not even acknowledge this point. This is a particular shame given that Creative Commons licences are now being ported to many different jurisdictions and it would have been a good opportunity to show how the concept of 'remix' works in these jurisdictions. Perhaps Lessig might address this in the future.

The All-American focus also bothered me with regard to Lessig's recommendations for legal reform. Again, Lessig pioneers the, 'let's make copyright an opt-in system and reduce the length of protection' position. Let me say this once and for all, to all those Americans out there who have made the same or similar points: THE BERNE CONVENTION EXISTS. I'm sorry. I didn't mean to do the keyboard equivalent of yelling. But I imagine my future thesis examiners will not be impressed if I make a number of suggestions for reform that completely ignore the reality of Australia's international obligations. The Berne Convention dictates a certain period of protection for works and other subject matter and, in fact, the United States has extended its protection beyond that minimum (and indeed made Australia do the same). Suggestions for reform that ignore these obligations are essentially useless. We need to start thinking about reforms that work within the current system and, admittedly, Lessig does so, for example, by suggesting a simplification of current copyright law. But choosing to ignore the reality of international obligations lessens the impact of those other suggestions, unless Lessig is willing to address this issue at an international level.

My second point is that I think Lessig needs to reconsider who his target audience is. Lessig writes about the impact of blogs; he writes about Wikipedia; he writes about YouTube, Amazon, Google, Flickr. The trouble is the people who will read Remix and ordered his book as quickly as I did, will be individuals who blog; have edited Wikipedia; shopped on Amazon.com; and use Google, YouTube, and Flickr. They may have some legal knowledge (at the very least a brush with copyright law). They will probably also be American, actually.

Thus the majority of Lessig's readers, particularly those who buy the first run of Remix, probably know as much about his modern examples as he does. In fact, Lessig himself has encouraged this, by creating wikis for his books that his readers can directly contribute to. So there is no reason any more to re-write the details of Wikipedia's birth. Benkler has done it. Zittrain has done it. Lessig has done it. Even I have done it. Let there be no more, please.

This may seem a harsh criticism, and certainly there will be people who read Remix and this is their first brush with such a brave new world. But if you are reading this review, then you probably know a reasonable amount about this area anyway, and can probably see where I am coming from.

Despite these criticisms, as I said before overall I did enjoy Remix...and, in the spirit of the hybrid economy that Lessig writes about, I look forward to contributing to the Remix wiki, and not receiving any payment for that.

Australian Institute of Criminology report on 'Intellectual property crime and enforcement in Australia'

2008-10-20T09:18:00.003+11:00

Last week the Australian Institute of Criminology released its report on Intellectual property crime and enforcement in Australia, with some very interesting findings. I haven't had a chance to go through the whole report yet but I just wanted to make a general comment about this statement, which I find completely unsurprising (at p. 38):

An Envisional study found Australia was the second-largest downloader of online
pirated TV shows in the world (15.6%), behind the UK (18.5%) but ahead of the US
(7.3%). Australians were the leading downloaders of pirated TV programs on a per
capita basis. The report found that increased bandwidth take-up, technological
advances and a high demand for US-based TV shows are some of the reasons that
piracy has boomed. Seventy percent of the piracy occurs through BitTorrent (BT)
(Envisional 2004, BBC News 2005, Reuters 2005). The survey found that the top TV show downloads were 24, Stargate Atlantis, The Simpsons, Enterprise, Stargate
SG-1, OC, Smallville, Desperate Housewives, Battlestar Galactica and Lost (Idato
2005).

Australia is, and has always been, since colonial times, an importer or 'user' nation of copyright-protected materials, so it came as no surprise to me that we were the second-largest illegal downloader of television shows. The fact that Australia is an 'importer nation' was picked up in the Spicer Committee's report and then later with regard to the intellectual property package of the AUSFTA. Back in the ye olde colonial days, the majority of our books were imported from the United Kingdom, with many UK publishers and then eventually some colonial publishers, producing specific 'colonial editions' for sale in Australia. As Martyn Lyons has noted in a chapter of the fantastic A History of the Book in Australia 1891 - 1945, Australia earned itself the reputation as being 'the jewel of Britain's book trade empire.' (see Martyn Lyons, 'Britain's Largest Export Market', in Lyons & Arnold (eds) A History of the Book in Australia 1891 - 1945, 2001, at p. 19).

Until about five years ago, a similar statement could be made regrding Australia's importation of international television shows, predominantly from the United States and, to a lesser extent, the United Kingdom (I think The Bill and Jane Austen miniseries adaptations would comprise a lot of that market!) And, just as in the colonies Australian readers had to pay a considerable amount more than their UK counterparts to purchase the latest fiction, Australians had to wait a long time to see new episodes of their favourite TV shows.

The West Wing is an excellent example - originally it was aired on the Nine Network, who changed the time and date of broadcast so often that many viewers began to resort to Amazon.com to get the latest series on DVD. Eventually (thankfully) it was picked up by the ABC and the sixth and seventh seasons were shown weekly until the end of the series.

With examples like this, it is really no surprise that Australians have turned to the Internet to catch their favourite shows just after they have been aired in the United States. This is not to suggest that I support this type of behaviour but it poses a challenge to the free-to-air networks in Australia to change their business models, and I know a number have. In an article published yesterday in the Sun-Herald newspaper (accessible of the Sydney Morning Herald website here) it is noted that shows such as House and the US version of Kath & Kim are appearing about one-three days after they appear in the States. Yet some very popular shows, for example, Heroes, are still taking over a fortnight to get to our screens, though that is still being described as 'fast-tracked'. Not fast enough, clearly.

The IceTV Hearing

2008-10-19T10:49:00.003+11:00

The High Court has now heard the appeal in IceTV v Nine Network (previously blogged about here, here and here). The House of Commons has received several kind tip-offs about the hearing, but as this housemate just finished a thesis chapter and the last thing that I wrote on was originality under the 1968 Act, a few days were needed to re-group.

The proceedings began on Thursday morning and the Australian Digital Alliance and Telstra were both granted amicus status, the ADA for IceTV and Telstra for Nine Network. David Catterns, the barrister who successfully argued for CAL in the recent CAL v NSW decision appeared for Telstra. The hearing took the better part of Thursday and Friday and the transcript of the Thursday proceedings can be found on AustLII here.

As I said, this is the first of a few posts on the hearing, so I will have more of a discussion up within the next few days.

Untitled #1

2008-10-10T14:21:00.007+11:00

During an Alice Springs gallery visit last Friday, Arts Minister Peter Garrett energetically hyped the great benefits that a resale royalty scheme will apparently confer on visual artists in Australia. The proposed legislation to establish a right to resale royalties for visual artists is expected to be in place by mid-2009.

The announcement that the royalty scheme will soon be a reality is undoubtedly good news for many visual artists. Royalties will be payable upon all ‘original works of graphic or plastic art’ that sell for $1000 or more, upon their second sale. The right will apply to all eligible works that are acquired after the legislation commences – whether the first acquisition or transfer of ownership was by gift, inheritance, sale, or some other means. The royalty payable will be calculated at an uncapped flat rate of 5% of the resale price.

The media release reporting Garrett’s announcement pointed to a number of advantages in the introduction of the scheme: Indigenous artists and their estates will benefit from both the significant increases in price that many works are now fetching on the secondary market, as well as the requirements for greater accountability and record-keeping that will be contained in the legislation. Visual artists in general will benefit from the fact that a right to royalties places them in the same field as artists working in the mediums of music, film, literature and so forth, where royalties are an established part of those artists’ income from their work.

Unsurprisingly, a few significant factors were conveniently glossed over during the fanfare. Firstly, the definition of what will constitute a ‘work of art’ appears to contain some substantial holes. The definition proposed will be based upon that utilised in the EU, and covers works in such media including “a painting, a collage, a drawing, a limited edition print, a sculpture, a ceramic, an item of glassware or a photograph”. Video/digital/new media are conspicuously absent from this definition, and it will be interesting to see how (or if) the right also applies to works that are sold as ‘installation’-type suites, including video, sound and so on.

Further issues are raised when the outcomes of the scheme, and precisely who will benefit, are considered. While Indigenous artists have been a particular (and deserving) focus in this aspect of the debate over introduction of the scheme, the Discussion Paper issued by DCITA in 2004 made the point that often, female artists (from all backgrounds) are underrepresented in the secondary art market (2004, p34); male artists, and especially white male artists, are by far the dominant group in terms of whose work fetches significant prices upon resale. While the $1000 minimum resale price opens the scheme to many visual artists, the recurring issue of whose art is bought and sold more often, involving arguments about gender/culture/race and the art market, are unavoidable.

The resale royalty scheme is a valuable and long-overdue right for visual artists. Re-examining how a ‘work of art’ is to be defined will be an important aspect in the drafting of the legislation, and hopefully one that is paid due attention considering the increasing interest in new/digital media in contemporary art practice. Most importantly, the scheme is certainly not a final answer to supporting the entire visual arts community, in all its diversity. As the Arts Law Centre stated in its response to the Discussion Paper:

…this is but one mechanism for increasing the income steam of artists in Australia. It does not negate the need for other support mechanisms being available to visual artists and craftspeople, such as increased funding to the visual arts and many of the other proposals outlined in the Myer Report (2004, p6).

Indeed, this blogger is waiting with interest to see which killer arts policy is next heralded by Peter Garret.

'What History Teaches Us About Copyright Injunctions'

2008-10-09T19:25:00.004+11:00

Sent through to the House of Commons by Professor Kathy Bowrey:

For readers interested in reading more on copyright's early history (1500-1800) and unable to spend a month or two at Kew public records, there is a great article by H. Tomas Gomez Arostegui, 'What History Teaches Us About Copyright Injunctions and the Inadequate-Remedy-at-Law Requirement', 81 S. Cal. L. Rev. 1197 (2008).

Tomas has also started compiling a website where he includes an Appendix of Copyright Infringement Suits & Actions From c. 1560 to 1800, and pdfs of some of the cases. More cases to follow as he expands the resource. You can find this all here.

It is a really impressive project.