the digital agenda russell allen incorporating slides by professor graham greenleaf august 2004...
TRANSCRIPT
The Digital Agenda
Russell Allen
Incorporating slides by Professor Graham Greenleaf
August 2004
These slides may be used for private, non-commercial study only.
Responding to the Digital World
How should copyright change to cope with the new, digital, reality?
Traditional Views of Copyright Two traditional Western views of copyright
European authors’ rights approach• Inalienable link between creator and work, goes beyond
economic rights; stresses natural rights not bargains Anglo-American economic rights
• Alienable rights, but nevertheless only justified by a bargain between the public good and a limited monopoly
‘Financiers copyright’ (Drahos) Financier of © works must be guaranteed rights of
exploitation in whatever media and technological environment he chooses to operate
There are many other versions of this ‘Max’ view
Changing Metaphors 1
Litman (Ch 5) identifies 3 stages in 20thC US ‘metaphors’ for ©:
(1) The author/public bargain (to 1970s) a limited monopoly - a bargain to encourage
creativity
(2) Incentive to authors for creation (from 70s) standard economic model of © as a system of
incentives No ‘bargain’ limitations; any increases in rights will
increase incentive
Changing Metaphors 2
(3) Inherent right of authors to control uses of works ‘Conversion of © into a trade issue’
convinced US lawmakers (Litman) - © was about Amercians protecting their property from foreigners stealing it
Stronger US IP laws were primarily a good example for US trading partners
[Also connects to inherent property rights arguments - popular and no inherent limits]
Other digital agendas Litman
See Reading Guide no non-commercial infringement
LessigSee Lessig ‘The Internet Under Siege’ (2001)See Reading Guide
Limited terms, limited protections, fair use Drahos
See ‘Resisting the new inequality’ (Ch 13) Reformulating the public domain
See Wk 5 on creating/proecting digital commons
The Digital Agenda (I) - International dimensions
The current international consensus on changes to the IP regime
The ‘digital agenda’ in international IP law / practice
See: Drahos Information Feudalism 2002; McKeough & Stewart Ch 21; Griffiths paper
Sources of international developments: US ‘forum shifting’ away from UNESCO,
UNCTAD and WIPO treaties US trade sanctions before / after TRIPS TRIPS Agreement 1994 WIPO Copyright Treaty 1996
The digital agenda pre-TRIPS US ‘forum shifting’
the US’s biggest success is in changing the forums deciding international IP (Drahos)
Dissatisfaction with WIPO WIPO’s failure to support standards desired by US eg
proposing a special regime for software, not copyright - abandoned after US, Japan and Australia adopted copyright
WIPO’s ‘deepest failure’ (Drahos) was in its failure to develop an international enforcement mechanism - Not one dispute ever before ICJ
WIPO was forced to accept TRIPS and WTO
US ‘forum shifting’ (2)
Dissatisfaction with UNCTAD • UN Conference on Trade and Development
Dissatisfaction with UNESCO• UN Educational, Scientific and Cultural Org
Administered UCC, which US had always preferred to Berne
US withdrew from UNESCO 1984
The digital agenda pre-TRIPS US trade law - bilateralism (see Drahos Ch 6)
GSP (Generalised System of Preferences): beneficiary developing countries could import duty-free into US
1984 Trade and Tariff Act linked GSP to a country’s conduct on IP issues
S301 Trade Act (1984) gave President power to sanction states failing to give adequate protection to US IP - allowed sanctions against countries no longer eligible for GSP (eg Taiwan, Korea)
‘Special 301 (1988) - annual s301 listings at 3 levels of seriousness before trade sanctions
US trade law - bilateralism (2) US trade law and IP (cont)
From 1984-95, 11 s301 actions against 7 countries, but only 1 punitive tariff imposed
‘more bark than bite’ but US skilful use of s301 achieved major IP changes bilaterally (Drahos)
Most important is that ‘US bilateralism … remains relentless’ post-TRIPS (Drahos) - WTO enforcement is just another weapon in obtaining bilateral aims
… and its European equivalent 1984 EU equivalent of s301 & GSP - enforced
against Indonesia, Thailand, Korea etc
TRIPS Agreement 1994 See two Griffith summaries in Reading Guide
TRIPS = Trade Related Aspects of Intellectual Property Rights
One of the system of agreements making up the World Trade Organisation (WTO), agreed in the Uruguay Round (1994), in force 1995
Pt II - standards for IP rights - reform agend Pt II - required enforcement measures Dispute resolution (A63-64) by WTO dispute
settement procedures TRIPS Council - assists in dispute settlement etc
The digital agenda in TRIPS A9 - Relation to the Berne Convention - compliance
with Berne Convention required (except for moral rights)
A10 - Computer Programs and Compilations of Data - (1) protection of computer programs as literary works; (2) protection of 'compilations of data or other materials' (limited form of database protection).
A11 - Rental Rights - limited required to provide rental rights in relation to computer programs and films (and, with exceptions, to sound recordings: A14(4))
The digital agenda in TRIPS (2) A12 - Term of Protection - generally, term of copyright
must be at least 50 years from the authorised publicaton of a work or, if unpublished, 50 years from when made.
A13 - Limitations and Exceptions - these must be confined to special cases which do not conflict with 'a normal exploitation of the work and do not unreasonably prejudice the legitimiate interests of the right holder'.
A14 - Protection of Performers (etc) - requires performer's rights, reproduction right re sound recordings, various rights re broadcasts; and minimum term of protection for all of these.
WIPO © Treaty 1996 - Expanding the digital agenda Early versions in US White Paper on © reform,
1995 New WIPO Treaty rights not in TRIPS:
A8 - the right of communication to the public, and the right of 'making available'
A11 - prevention of circumvention of technical protections
A12 - protection of rights management information (RMI)
Reproduction right was not re-defined Not yet in force: 30 ratifications needed
Further expansions Europe
EU Copyright Directive 2001 - beyond WIPO?
Unfinished agendas on database protection
Criminalisation of © enforcement ‘Long arm’ US takedown notices What else does Max want? …
Digital Agenda (II) -Australian dimensions
The domestic response to the international agenda
Implementation Australia is one of the few common law
countries to implement the Digital Agenda reforms
Copyright Amendment (Digital Agenda) Act 2000 (referred to in the following as the 'Digital Agenda Act') came into force on 4 March 2001
It included some of the most significant changes to the Copyright Act 1968 for many years, particularly in relation to cyberspace issues (as its name implies).
Main Amendments new definition of computer program new definition of 'broadcast' to include cable
transmissions refinements to the meaning of 'reproduction'; including
temporary reproductions (caching), and conversion of programs;
the new rights to communicate and to 'make available’ fair dealing exceptions to the new rights limitation of liability of carriers and carriage service
providers (including ISPs) circumvention measures and RMI ('New enforcement
provisions').
Convergence or Categorisation?
Traditionally copyright based on categories
Digital works often blur these boundaries This raises problems with outcomes
What is a Computer Game?
A computer game embodies video, sound, music, images, text and is also software. What is it?
Galaxy Electronics Pty Ltd v Sega Enterprises Ltd and Another — 37 IPR 462
Kabushiki Kaisha Sony Computer Entertainment v Stevens [2003] FCAFC 157
What difference does this make?
• Differences in the rights comprising copyright- ie, what constitutes infringement
• Differences in ownership• Differences in duration
Should categories be continued?
n Option 1: Create new multimedia category
n Option 2: Eliminate all categoriesn Option 3: Allow major categories to
continue to eliminate minor categories (Literary Works and Cinematograph Films)
Software
n A computer program is now a literary work s10(1) Copyright Act
n computer program means a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result.
Fair Use for Software
n ss48AB – 47H
Right of Communication to Public
s31 Copyright Act – “communicate the work to the public”