Law and technology

Rendering ACTA superfluous?

Australian law professor Michael Fraser suggests that ISPs could render ACTA “superfluous” by entering into commercial agreements with content providers:

“The best approach to these issues… is to do a commercial deal and bring the ISPs into the value chain,” he said. “Rather than litigate [content providers] should include ISPs in the supply chain and ensure they get a fair part of the reward and allow access to content via the ISPs.”

The suggestion does not, of course, imply that ISPs could “contract out” of copyright law altogether. But if a commercially acceptable deal with major rights-holders could be reached, that could at least provide a “market” solution to the possible uncertainty and other concerns ACTA may cause for ISPs, rights-holders and users.

Parody rights in IP law

The studio behind Downfall film has applied to have numerous parodies of its movies removed from YouTube on the grounds of copyright infringement. The clips of the film used in the short YouTube videos are the copyright of the studio, but the question is whether the parodies are permitted under the fair use doctrine of US law.

Now, YouTube has helpfully given instructions for users whose clips have been the subject of an infringement claim by the studio.

On the local front, Luke Appleby notes that New Zealand still does not have a parody right under our copyright law. In essence, a review was announced in 2008, but has not progressed since.

Privacy attitudes

A study has been published in the US entitled “How Different are Young Adults from Older Adults When it Comes to Information Privacy Attitudes and Policies?”. From the report:

An important part of the picture, though, must surely be our finding that higher proportions of 18-24 year olds believe incorrectly that the law protects their privacy online and offline more than it actually does. This lack of knowledge in a tempting environment, rather than a cavalier lack of concern regarding privacy, may be an important reason large numbers of them engage with the digital world in a seemingly unconcerned manner.

From the conclusion:

… we found that in large proportions young adults do care about privacy. … Public policy agendas should therefore not start with the proposition that young adults do not care about privacy and thus do not need regulations and other safeguards. Rather, policy discussions should acknowledge that the current business environment along with other factors sometimes encourages young adults to release personal data in order to enjoy social inclusion even while in their most rational moments they may espouse more conservative norms.

The wider issue for all age groups, though, is that people seem quite happy to exchange privacy for functionality (or other benefits). To what extent should governments intervene?

Government confirms ban on software patents

Commerce Minister Simon Power has confirmed that the Government will adopt the recommendation to ban software patents in New Zealand. The speed of this announcement is somewhat surprising, as lobbying against the ban had been signalled.

The Economist on shorter copyright terms

The Economist says it is “time to tip the balance back” on copyright terms:

Largely thanks to the entertainment industry’s lawyers and lobbyists, copyright’s scope and duration have vastly increased. In America, copyright holders get 95 years’ protection as a result of an extension granted in 1998, derided by critics as the “Mickey Mouse Protection Act”. They are now calling for even greater protection, and there have been efforts to introduce similar terms in Europe. Such arguments should be resisted.

In New Zealand, the copyright term is generally the life of the author plus 50 years – meaning that the period often cannot even be determined while the author is still alive.

Website operators: edit comments at your own risk

The Register reports on a recent case highlighting the defamation risk of editing website comments. A key issue in New Zealand is whether the website operator “assumes responsibility” for another person’s potentially defamatory comment. As I say in my article published here:

If your website publishes third-party content (e.g. forums, search results of other sites, user ratings, etc), ensure that you are not seen as “assuming responsibility” for that content. In practice, this can include not exercising editorial control over articles and comments. This will not always be possible or appropriate on some websites.

Global privacy regime mooted

New Zealand’s privacy commissioner, Marie Shroff,  has suggested that a United Nations treaty may be required to protect privacy.  She said:

“The reason for this is [a global regime] would bring legal certainty… We have to look at whether and how we can regulate to provide certainty for businesses and protections for individual citizens”

Legal certainty is a very good thing though as I said the other day, there is unlikely to be an “imposed” global regime, and Ms Shroff denied the proposal would be “some sort of a bureaucratic initiative to impose more regulation on business”. The continued development of international guidelines (also suggested by Ms Shroff), co-ordinated enforcement, and even UNCITRAL-type “model law” is more likely here (a TRIPS-like treaty could be a possibility). New Zealand’s “privacy principles” approach works well, and the Privacy Commissioner plays a good and efficient domestic role – could the New Zealand regime be a model template? Standards would also assist and reinforce the nascent “self-regulation” by the industry, such as the Digital Due Process Coalition launched recently.

New Zealand TV listings copyright row

Kiwiblog has commented on Sky TV’s recent attempts to prevent a software developer from distributing software that could be configured to copy its TV listing, claiming their listings are protected by copyright (more on this another day).

Net nuetrality setback

A US court has ruled that the Federal Communicationc Commission does not have the authority to stop an ISP prioritising traffic, meaning that the ISP can take steps such as choking file-sharing traffic. Some see this as a major setback for maintaining net nuetrality, while others are more sanguine. For the record, New Zealand does not have any internet nuetrality regulation.

Pink Floyd has won a case, in the UK, preventing its record label EMI from distributing its songs individually, instead of as an entire album. The band objected to this practice, which it said undermined the integrity of their “seamless” albums. The judge said EMI was “not entitled to exploit recording by online distribution or by any other means other than the original album, without the consent of Pink Floyd”.

While this case turned on a contractual clause expressly prohibiting EMI from selling Pink Floyd’s songs “out of context”, New Zealand’s copyright law can give musicians (and other copyright holders) limited protection against “derogatory treatment” of their musical works outside of a contract (part of the “moral rights” of authors long recognised in civil law jurisdictions, but only since 1994 in New Zealand).

Under section 98 of the Copyright Act 1994, an author of music has the right (with various complex requirements and exceptions)  “not to have his or her work subjected to a derogatory treatment”. It is important to note that, where this section applies, it gives the right to the author, not the copyright owner who usually has all the rights under copyright law.

Derogatory treatment includes doing something “prejudicial to the honour or reputation of the author”.  What this actually means in practice is not always clear. In the case of a band, whose reputation might include concept albums portraying a high level of “interconnectedness” of songs, an argument could be made that breaking up the album, or rearranging it, or reducing a song to ring tone without permission, is a derogatory treatment. Similarly, using a musical work to accompany or promote a highly offensive movie could be derogatory treatment (one quirk is that moral rights extend to the “musical work” but not necessarily to an actual recording of it). In either case, the person using the work may be licensed to use it, but the author may still have a remedy for derogatory treatment. It would very much depend on the facts, taking into account the complex and incomplete coverage of moral rights.

One of the few New Zealand cases involving derogatory treatment is Radford v Hallensteins ([2009] DCR 907 and others). It involves a clothing chain that printed t-shirts showing an image of sculptor John Radford’s Western Park installation in Auckland. Radford has brought a claim against the clothing chain for copyright infringement, including derogatory treatment of his work. The case is yet to be heard, but the District Court refused to strike out the claim last year.

The New Zealand version of the Yellow Pages is facing a fight similar to the one its Australian counterpart had recently, in which an Australian court ruled that there is no copyright in a White Pages or Yellow Pages telephone directory (read my post here). Together with the IceTV case, the Australian courts appear to have decisively moved away from the “sweat of the brow” type arguments favoured in the UK and (to date) New Zealand, instead re-focussing on key principles of originality and authorship. Previous cases involving Yellow Pages and other directories have been before the New Zealand courts (for example, YPG IP Ltd v Yellowbook.com.au Pty Ltd, Auckland High Court 2007; University of Waikato v Benchmarking Services, Court of Appeal 2004), however these have not conclusively settled the question.

The New Zealand case is due to be heard in the High Court in May. The clear and forceful Australian judgments will surely be influential on the Court’s ruling (assuming the Telstra case is not overturned – it is being appealled), bearing in mind that New Zealand’s Copyright Act does have some important differences to Australia’s.

It is quite possible that by years end New Zealand will be on the road to adopting the more tightly focussed copyright law that has found favour in Australia. However, it will likley require at least one appeal to the Court of Appeal (and ideally another appeal to the Supreme Court) to set an authoritative precedent.

An Australian court appears to have completed what the IceTV case almost did nine months earlier, by ruling last week that there is no copyright in a White Pages or Yellow Pages telephone directory (Telstra Corp v Phone Directories, 10 Feb 2010, Federal Court of Australia).

If this decision is upheld (it could yet be appealed to the Australian High Court, the nation’s highest court) it means that Australia has essentially adopted the position of the United States Supreme Court in Feist Publications v. Rural Telephone Service, which involved similar facts.

While the Feist case, and now the Telstra case, concerned telephone directories, the rulings cover compilations of facts generally. The rulings are clear: compilations of facts, without any “creative spark”, are not copyrightable regardless of the effort expended. There is now considerable disparity with the UK approach, which has tended to support the “sweat of the brow” approach rejected by Australia and the US.

The New Zealand courts have yet to conclusively determine this question, but the Australian High Court decision in IceTV and now the Telstra case will be persuasive. Australia’s copyright law is similar to New Zealand’s, and there is good reason to think that New Zealand will follow Australia’s lead in this area.

The New Zealand operator of the Yellow Pages (or simply “Yellow” on this side of the Tasman) is understandably unhappy about this. Likewise, the losing party in the Telstra case said:

“We are disappointed with the result; it is not appropriate to springboard off our time, energy, thought and effort.”

It is easy to sympathise with this view. However, the IceTV and Telstra cases are powerful restatements that, fundamentally, copyright is about originality not effort. Indeed, section 14 of the Copyright Act provides that copyright only exists in “original works”. If it’s not original (i.e. the product of independent intellectual effort), there is no copyright. In the Telstra case, the Federal Court came to this stark conclusion:

“None of the Works [i.e. the directories] were original. None of the people said to be authors of the Works exercised “independent intellectual effort” or “sufficient effort of a literary nature” in creating the Works. Further, if necessary, the creation of the Works did not involve some “creative spark” or the exercise of the requisite “skill and judgment”… For those reasons, I do not consider that copyright subsists in any of the [directories].”

In other words, the databases in question were simply collections of facts, and facts are (generally) not copyrightable.

This ruling (if upheld) opens the door in Australia for substantial third-party copying of databases for free. For content providers, the lesson is clear: copyright law can protect your originality, but not necessarily your effort.

Has IPONZ created a new category of registerable IP?

For the record:

• Copyright protects original works, not ideas.
• Trade marks protect origin, not ideas (or content).
• Patents protect novel, non-obvious, documented inventions, not ideas (or configurations).

Despite what the IPONZ homepage implies, there is no way to prevent someone “having your  idea”. A patent comes close, but protects the invention – not simply “an idea” as such.

It is certainly a good thing to be able to use intellectual property law to protect the improper taking of your intellectual property, but making sure someone else doesn’t “have the same idea”? Not a good idea.

Credit: good spotting by Jonathan Hunt, HuntDesign

In a case that will possibly influence New Zealand law, the High Court of Australia (their highest court) last week handed down a major decision that makes it harder for companies to claim copyright over compilations and databases such as television schedule listings.

After a hearing involving no less than six QC’s (or Senior Counsels as they are now known in New Zealand and most Australian states), the High Court unanimously ruled in IceTV Pty Limited v Nine Network Australia Pty Limited that IceTV, which provides electronic programme guides, did not infringe the Nine Network’s copyright by partially reproducing its television schedule listings.

Continue reading ‘Aussie copyright decision increases scope for fair (dinkum) dealing’ »

The World Digital Library has recently been launched. This is a UN-sponsored initiative to digitise historically significant books (mainly) as well as photographs and other content, and put them online for free public access. The library currently has 1200 exhibits, some dating back over 2000 years, and is expected to grow significantly as museums, galleries, universities and other institutions add content.

This raises a question: who owns the copyright in these historical works? Before you think “who cares – the authors have been dead for centuries”, think again. Continue reading ‘Copyright in historical works in the digital age’ »

If you operate a website, ISP or other online service in New Zealand, a recent law change provides you with a limited, but useful, protection against some types of copyright liability.

The new section 92B (no, not 92A) of the Copyright Act 1994 came into force last year. While the attention was on its “guilt by accusation” neighbour, section 92B has quietly provided all website operators, ISPs, and businesses who have a LAN with what is known in the US as a “safe harbour” provision.

Continue reading ‘A safe harbour from copyright infringement liability’ »