The ACTA saga continues, with the Australian Digital Alliance's press release zeroing in on the impenetrable veil of secrecy surrounding negotiations of the proposed Agreement. This follows media coverage, articles, and blog posts - including those on The Patry Copyright Blog, LawFont and House of Commons - debating just how sketchy the few available details about the Agreement are, and wide appeals to allow some level of public consultation on the Agreement in Australia.

In other copyright news, the Attorney-General's Department has tabled its Review of Sections 47J and 110AA: Copyright Exceptions for Private Copying of Photographs and Films. The Review recommends that no amendments be made to the provisions for the time being, gesturing to the relatively short period of operation of the provisions as one reason for this.

In the UK, 'Mr Modchips' has survived a copyright stoush, with judgement in his favour handed down by the Court of Appeal (Criminal Div). It was found that any alleged copyright infringement would have taken place prior to use of the modchips. It will be interesting to see whether the judgement prompts legislative action, as occured following the decision of the somewhat similar case of Stevens v Sony in the High Court of Australia.

Labels: cases, copyright, infringement, legislation, piracy, review, sophia

The Fair Use Project at the Centre for Internet and Society (Stanford Law School) will help defend a book publisher planning on releasing a print version of the The Harry Potter Lexicon. Publication of the book has been blocked by JK Rowling and Warner Brothers based on claims of copyright and trademark infringement. Rowling notes:

"It is not reasonable, or legal, for anybody, fan or otherwise, to take an author's hard work, re-organize their characters and plots, and sell them for their own commercial gain. However much an individual claims to love somebody else's work, it does not become theirs to sell."

Rowling previously shared quite a close relationship with the Lexicon and has publicly praised the website. (Read more in this post on Ars Technica).

According to SMH:

"Fair Use Project Executive Director Anthony Falzone said the Lexicon is protected by US rules that have long given people 'the right to create reference guides that discuss literary works, comment on them and make them more accessible.'"

Labels: abi, cases, fair use

This just in: Jose Duarte, who filmed The Simpsons Movie on his mobile phone and uploaded it onto the Internet, has been convicted and fined $1000 by Magistrate Pat O'Shane at the Downing Centre Local Court (See Housemate Abi's previous post on the case here). According to a report in the Sydney Morning Herald, Duarte's lawyer argued that his client "had 'the sophistication of a dead fish', when it came to uploading the footage on to the internet." Indeed. Commonwealth lawyers argued, however, that "the potential costs for the film's owners was in the hundreds of thousands of dollars".

It doesn't appear that anything detailed, beyond the report in the Sydney Morning Herald, is up on the Internet about this case yet. More to come as more details emerge.

Labels: cases, catherine, infringement

A few days ago, housemate Abi posted about action being taken in court over a GPL violation in the US. And I'm sure astute readers who looked at the facts thought "what? that's so obviously violation. how can they possibly think they had the right to do that?" I know that's what I thought. Of course along with that thought goes another thought: this will be another win we can chalk up on the side of the GPL and the Free Software Foundation.

Anyway, the point is, it won't be getting to court because the defendants capitulated. According to Linux Watch, Monsoon Multimedia "admitted today that it had violated the GPLv2 (GNU General Public License version 2), and said it will release its modified BusyBox code in full compliance with the license."

This shows that the system works. The GPL must be clear enough that it is obvious what you can't do. (Okay, there's still some discussion, but on the day to day stuff, everything is going just fine).

Labels: ben, cases, gpl

Last week Justice Bennett handed down judgment in Nine Network Australia Pty Ltd v IceTV Pty Ltd [2007] FCA 1172. The case dealt with Channel Nine's claim that IceTV infringed its copyright in its television guides. Justice Bennett found that while the guides were protected under the Copyright Act, IceTV were not liable for infringement. The full judgment can be found at AustLII here and I will have a case summary up here soon.

Labels: cases, catherine

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:

• works "made by, or under the direction or control of the Commonwealth or a State" (section 176)
  
• works first published in Australia if this first publication is by, or under the direction or control of, the Commonwealth or a State (section 177)


• sound recordings and cinematograph films "made by, or under the direction or control of the Commonwealth or a State" (section 178)


• in addition to these provisions, the Crown owns any copyright materials produced by its employees under the general employment provision contained in the Copyright Act, subsection 35(6).

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 protection...is 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.

Labels: cases, catherine, Crown copyright

Blogs are currently abuzz with the news that a Canadian photographer, "Mr Spatial Mongrel from Kamloops BC"(aka David Wise) is alleging that Betty Hinton MP is in violation of the Canadian CC Attribution-ShareAlike licence that he released one of his photographs under. Hinton included the photographs in a newsletter and Wise states he would have not permitted Hinton to use the pic as it was not attributed and "because he disagrees with "her campaign and political viewpoint"".

Andres Guadamuz has an excellent analysis of the case over at Technollama, and concludes "I do hope we get a case out of this, as it would be interesting for many different reasons. So, in other words, "fight, fight, fight!"" I have to agree. This type of case, combined with the Viacom v. YouTube case tend to have us intellectual property-types foaming at the mouth, waiting to see what will happen next. Sad, but true.

Hat tip: Technollama and Michael Geist.

Labels: cases, catherine, Creative Commons

It's amazing how quickly some things can change and it's definitely a good sign when things do. In his latest, very recent 2007 article, R. Anthony Reese discusses the "new unpublished public domain" and, among other issues, discusses why, for example, some authors or their families might want to keep unpublished material private.

One of the examples that Reese gives is the estate of James Joyce, who died in 1941. Stephen Joyce, James Joyce's grandson and the controller of his literary estate, is notoriously protective of any unpublished material relating to his grandfather and family and, as this material remains under copyright law, it is easy to control publication of the material. One of the reasons Reese identified for Stephen Joyce being so protective of this material is because of its references to James Joyce's daughter Lucia, who spent some time in a mental asylum.

Between the publication of Reese's article, however, and the last few days, this situation has changed.

Back in 2003, Professor Carol Shloss was working on a biography of Lucia Joyce, titled "Lucia Joyce: Dancer in the Wake", when she was contacted by Stephen Joyce and told she was not permitted to quote from a considerable number of materials still controlled by the Joyce estate. Shloss was forced to make significant alterations to her text and delete many of her opinions conforming to the amount of quotation the Joyce estate considered 'fair use.'

In 2005 Shloss made a private supplemental website containing supporting material which she was forced to remove from the book. The Joyce estate threatened legal action against Shloss if she made the website publicly available. But would the Joyce estate succeed with said legal action?

Enter the Stanford Centre for Internet and Society's "Fair Use Project" ('FUP'). The FUP, which began in 2006, provides legal support on projects designed to "clarify, and extend, the boundaries of 'fair use' in order to enhance creative freedom." In June 2006 FUP filed a lawsuit on behalf of Professor Shloss, in order to establish her right to use "copyrighted materials in connection with her scholarly biography of Lucia Joyce."

Last week, the Joyce estate agreed to enter into a settlement agreement permitting Professor Shloss to publish quotations relating to James and Lucia Joyce electronically, and in a book. This is a particularly significant outcome given the situation identified earlier. In the words of Shloss:

"I fought not just for Lucia and Joyce, whose words had to be taken out of my book, but for the freedom to consider what happened to them and for the freedom of others to respond to my ideas. 'Fair use' exists to foster this liveliness of mind; its measure is in transformation not in a restrictive counting of words. Everyone who worked on this case understood that something far more important than my particular book was at stake in the fight. It was an honor to work with them." (source)

Sources/I Want to Learn More!

Stanford Scholar Wins Right to Publish Joyce Material in Copyright Suit Led by Stanford Law School's Fair Use Project, Digital50.com

An Important Victory For Carol Shloss, Scholarship And Fair Use, Anthony Falzone, CIS

R. Anthony Reese, "Public but Private: Copyright's New Unpublished Public Domain" Texas Law Review, Vol. 85, pp. 585 - 664 (particularly pages 618 - 619), 2007.

Matthew Rimmer, "Bloomsday: Copyright Estates and Cultural Festivals" Script-ed, Vol. 2, No. 3, pp. 383-428, September 2005

Post written by Catherine Bond and Abi Paramaguru.

(Pictured: "365 - Day 32 - Happy Birthday James Joyce!", daryldarko, available under Creative Commons Attribution-NonCommercial-NoDerivs 2.0 License)

Labels: abi, cases, catherine

Full Court of the Federal Court of Australia judgment in Cooper v Universal Music Australia Pty Ltd [2006] FACFC 187 is now available. Think twice before linking to infringing material...or hosting a site which links to infringing material.

• Analysis by Kim Weatherall here and later here (read about how Australian copyright law is becoming a "strange independent beast")
• Techdirt comments here
  
• "Copyright Ruling puts Linking on Notice", Sydney Morning Herald, 19/12/06
• "Australian Court Rules against MP3 Link Site", CNet News.com, 18/12/06
  

Labels: abi, cases