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”