According to this media release (via the Minister for the Environment, Heritage and the Arts, Peter Garrett) we can expect the implementation of a resale royalty rights scheme for Australian visual artists by 1 July next year.

More info is available here.

Sophia has previously blogged about the proposed scheme here.

Labels: abi, arts, copyright, resale royalty

Today IceTV was granted special leave to appeal to the High Court.

Another copyright case in the High Court? Be afraid...be very afraid.

In May 2008 the Full Federal Court handed down its decision in the IceTV case, overturning the first instance decision and cementing (or so we thought...and so we will probably find out again) the far reach of copyright protection in Australia for compilations. IceTV's production of a subscription based interactive electronic program guide (EPG) was found to infringe copyright in Channel Nine's program schedule. Nine contended that IceTV had indirectly copied their program guides by using online aggregated guides. The Full Court (from the people that brought you Desktop Marketing) found that regardless of how IceTV created their EPG template (IceTV claim this was created by actually watching the television and noting down the programs and times, a process described as 'torture' at [41]), they did breach copyright by incorporating last minute program changes made by Channel Nine (IceTV compared their template to the schedules available in aggregated TV guides and updated accordingly). By updating the programming guide IceTV took a substantial part of Nine's program schedule and infringed copyright.

The Full Bench noted that the question of substantiality depends more upon the quality rather the quantity of what is taken:

"When the quality of the material taken by Ice is considered, the substantiality of the part taken becomes even clearer" (at [115]).

Apparently by 'copying' week to week changes IceTV "appropriated the most creative elements of the skill and labour utilised by Nine in creating the Weekly Schedules" (at [115]).

Will IceTV get up on appeal? Magic 8 ball says 'outlook not so good'...but the battle rages on...and we wait with bated breath.

Kim Weatherall has written some excellent commentary about the case here and here. It is also worthwhile to take a look at IceTV Iced: Kangaroos Hopping Mad by U.S. copyright guru, Bill Patry.

[Update: The High Court transcript is now available. Further reading at Peter Vogel's blog (IceTV's former CTO) and slides from this presentation by David Lindsay which Cath linked to earlier.]

Labels: abi, cases, copyright

Out now (appeal allowed, relevant orders set aside).

Notable quote...

[92] Finally, and importantly, a licence will only be implied when there is a necessity to do so. As stated by McHugh and Gummow JJ in Byrne v Australian Airlines Ltd:

"This notion of 'necessity' has been crucial in the modern cases in which the courts have implied for the first time a new term as a matter of law."

[93] Such necessity does not arise in the circumstances that the statutory licence scheme excepts the State from infringement, but does so on condition that terms for use are agreed or determined by the Tribunal (ss 183(1) and (5)). The Tribunal is experienced in determining what is fair as between a copyright owner and a user. It is possible, as ventured in the submissions by CAL, that some uses, such as the making of a "back-up" copy of the survey plans after registration, will not attract any remuneration.

Hmmm...I'm sure housemate Catherine will have a few things to say about this one. See Catherine's post about the earlier Full Federal Court decision here.

Update: Read analysis from Weatherall here.

Labels: abi, cases

The Government is conducting a review of the recently introduced format shifting exceptions in the Copyright Act (47J and 110AA). The review is required by the Copyright Amendment Act 2006. The Attorney-General's Department has released an issues paper inviting submissions on the operation of these provisions. More information is available here.

Submissions are due just around the corner (29 February) - so get submitting!

Labels: abi, exceptions, review

Earlier in the week SMH reported that the Government is considering forcing ISPs to disconnect users who access pirated material (three strikes and you're out, UK style).

Kim Weatherall has done an excellent overview of the problems with this approach.

Labels: abi, enforcement, piracy

In 2006, the (sadly, soon to be ex-) Senator Andrew Bartlett helped us identify a new species of creature, one borne out of the Copyright Act amendments, known affectionately as "the Congealed, Wobbling Blob of Copyright" (see here and here).

In 2007, it appears the Blob has moved with the times and now has its own 'BlobBook' page, and sends its silly season good wishes:



Seasons Greetings from all of us at the House of Commons!

Labels: abi, Fun

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

The Cyberspace Law and Policy Centre will be hosting a symposium on the proposed OO XML ISO standard and Australia. The event is free and we hope to see you there!

Speakers: A range of technical, legal and content experts from Australia and the region
Date: Friday 14 December 2007
Time: 8:30-1:00 (technical), 2:00-4:30 (legal) (catering provided)
Venue: Room 101, level 1, new Law Building, UNSW lower campus
URL: http://www.cyberlawcentre.org/2007/ooxml/

This symposium to explore issues raised by the proposed OOXML (Microsoft Office Open XML) document format standard from Microsoft, to assist consideration of the Australian response to the proposal through Standards Australia. Expert commentators from a range of perspectives will present written and oral summaries of the issues, and there will be detailed discussion of the most significant of these. There is proposed informal participation from Standards Australia, and experts associated with them. There are two sessions, Technical and Legal; there will be a preliminary 'Background Paper' on the Legal area, and a list of 'top 10 topics' for the Technical. The web page will also be updated with more detail and further resources close to the day.

Entry for this OOXML Symposium is free, but places are limited. To reserve a place, it is essential to RSVP to feedback@cyberlawcentre.org, indicating if you are coming for AM, PM or both sessions, if you need lunch, and the nature of your interest in the proposed standard.

Labels: abi, conferences, open standards

The Australian public is going to the polls on 24th November to elect members of our Federal Parliament (the one that sits in Canberra, is currently led by John Howard, and is constantly under siege from members of The Chaser's War on Everything). The calling of the election was a long time coming. Even though we knew that an election would have to take place soon (so says the Constitution), Prime Minister John Howard took his time in announcing the exact date. But now, in the words of one Federal House of Representatives candidate, it's "game on". A normal part of an election process, particularly at such a high level of government, is the holding of debates between party leaders. In Australia, debate is already under way as to who, when, and how these debates should take place.

House of Commons friend and ANU academic Dr. Matthew Rimmer has called for Australia to follow the lead of US Democrats presidential candidate hopeful Barack Obama and allow these debates to be made "freely accessible across all media and technology platforms" (See the ANU Press Release here). In the United States, Obama suggested that the US Democrat debates be either placed in the public domain or licensed under a Creative Commons licence.

Dr Rimmer has said that

"Whichever television networks or internet media end up broadcasting the federal
election debates, it’s important to the health of our democracy that people are
free to capture and distribute the dialogue of our prospective leaders so that
they can make a more informed decision."

The House of Commons strongly supports Dr. Rimmer's suggestion. It is an unusual one in an Australian context - in the United States, there is no copyright in works produced by the US government and thus there is at least a precedent for this type of action. There is also the First Amendment guarantee of freedom of speech, which arguably means that this type of content gains even greater significance. However, there has been a shift in this campaign to Australian political parties embracing all that the digital revolution has to offer (just type 'Kevin07' into Google, for example). A pledge by the parties to make debate materials freely available and accessible via sites such as YouTube would be both a positive and definite step for Australian democracy in the digital age.

The logisitics of such a proposition has also caused much discussion amongst House of Commons housemates. Housemate Ben writes:

"I think election debates should belong to the commons, at least insofar as
complete reproduction is concerned. However, I do see that there are good
reasons not to allow modifications, because they could be used to spread
disinformation at such a crucial time. For these reasons, a licence such as
Creative Commons No Derivatives would be appropriate (as opposed to, say, a
public domain dedication). It's also worth noting that, even under such a
licence, derivatives could be made for the purpose of satire (correct me if I'm
wrong here!), and that could perhaps be both a good and a bad thing (I'm not
sure to what extent you could use the satire exception to spread
disinformation)."

In response, Housemate Abi has agreed (and I concur) that the parody or satire fair dealing exception in the Copyright Act could probably be used to create parodies, although there issue regarding modifications may need to be addressed.

For more information on Dr. Rimmer's proposal, the ANU Press Release can be found here.

Labels: abi, ben, catherine, Creative Commons, open content, parody, youtube

(Via Choice)
9:00am - 5:00pm, October 29, 2007 (North Sydney)

Consumers' rights to use intellectual property are increasingly under threat. Policy is made at an international level - how can national consumer organisations work better to strengthen their voice on the global stage? This interactive one-day forum will introduce current campaigns and brainstorm ideas for action to reassert consumer rights.

Speakers include:

• Michelle Childs (Knowledge Ecology International, USA)
• Indrani Thuraisingham (CI, Malaysia)
  
• Indah Suksmaningsih - YLKI (Indonesia)
• Chris Murray (Consumers Union, USA)
  
• Luis Villaroel Villalon (Ministry of Education, Chile)
• Alwin Sixma - (Consumentenbond, The Netherlands).
  

The full program is available here.

Presented by: Consumers International, Choice, Consumers Union, Consumentenbond, Trans Atlantic Consumer Dialogue (TACD).

Registration in advance is required. General attendance: $65. Students/Academics/Employees of NGOs: $25. Please contact Lizzie Ball (CHOICE) at lball@choice.com.au or +61.2.95773372. Registration fee includes Morning Tea, Lunch and Afternoon Tea

For more information about the Consumers International World Conference 2007 see this page.

The Unlocking IP team will be there. Hope to see you there too!

Labels: abi, conferences

(Via Ars Technica) BusinessWeek reports that Universal Music is looking to compete with the Apple iTunes music store by offering a music subscription service called Total Music. From the reports, it seems that Universal is looking to explore different business models, such as using hardware makers or cell carriers to subsidise the subscription fee, and allowing the user to download unlimited amounts of music. It appears that affiliated companies would have Total Music offered as a bundle with their product, increasing the value of the product (and possibly the price) and moving more units.

I would like to know more about how the products and the subscription service would be priced in Australia and what part DRM would play (preferably no part). I would also be interested in finding out if the subscription service would be a service in its own right- or only available with certain products. It seems that there is some interesting potential here for reviving music sales and a very real threat to Apple if this gets off the ground.

Labels: abi, business models

Housemates Abi and Catherine, and project chief investigator Graham Greenleaf have been published in the Journal of World Intellectual Property. They were too modest to post about it themselves, but something has to be said! I mean, if I was published in the Journal of World Artificial Intelligence, well I'd want to tell everyone :) (not that there's a journal called the Journal of World Artificial Intelligence, but that's not the point!).

So without further ado, here's the link: Advance Australia Fair? The Copyright Reform Process.

Now, I'm no legal expert, and I have to admit the article was kind of over my head. But, by way of advertisement, here are some keywords I can pluck out of the paper as relevant:

• Technological protection measures (TPMs)
  
• Digital rights management (DRM)
• The Australia-US Free Trade Agreement (AUSFTA)
• The Digital Agenda Act (forgive me for not citing correctly!)
• The Digital Millennium Copyright Act (DMCA)
  
• The World Intellectual Property Organization (WIPO)

Not to mention all the courts and cases that get involved. Anyway, that should be enough to whet your appetite. Get reading it; get citing it ;)

Labels: abi, ben, catherine, legislation, research

Radiohead's seventh album "In Rainbows" will be released in a couple of days and what really has people buzzing about it is the fact that it's left up to you to decide how much you want to pay for it. The album will be available for digital download exclusively through Radiohead's website. The price field is left blank for you to complete. When you hit the '?' button the website tells you "It's up to you" clicking '?' again leads to the site urging, "No really, it's up to you".

While this isn't the first time an artist has made their music available for free legal download on the internet it is the first time that I am aware of successful artists asking fans to pay what they want for their music (although this is somewhat similar to honesty box policies on donations). The digital download will be available months before the physical discbox (for 40 pounds you get vinyl records, enhanced CD with extra sounds, artwork and other extras). I have always supported looking at different business models to deal with IP. The diehard fans will definitely purchase the discbox, supporters will throw in a couple of dollars. This might work for an established well-respected band like Radiohead but how would disposable pop fare? Earlier this year Nine Inch Nails criticised their record company for selling their album for much more money than other newly released music in Australia (e.g. $34.99 versus Avril Lavigne at $21.99) because their core audience will pay whatever it costs to own their latest record (whereas some pop has to be discounted to sell units). In September, at a concert, after discovering that prices had not changed the band ushered fans to "STEAL IT. Steal away. Steal and steal and steal some more and give it to all your friends and keep on stealing. Because one way or another these [bleep]s will get it through their head that they're ripping people off and that that's not right." (Read more on NIN in this post on Defending Scoundrels). It would appear that Radiohead's proposal is fairer for fans because at least they are given a choice about what premium they will pay. A ‘pay what you want’ system might even get the best artists floating to the top.

Radiohead will be boosted by the extra publicity- but will others follow suit? We will also discover some interesting things about how consumers believe music should be priced. At the very least, it seems that more people will have copies of this album increasing the market for future tours and other merchandise and products.

If this is the IP revolution- sign me up!

Labels: abi, business models

The Software Freedom Law Centre (SFLC) has filed a copyright infringement suit against Monsoon Multimedia Inc in the first such lawsuit in the U.S. based on violation of the GNU General Public License (GPL). The Software Freedom Law Centre has claimed that Monsoon Multimedia failed to provide downstream recipients with the source code of the free software application Busybox, when distributing firmware which included Busybox, as required under the GPL.

More information is available here on the SFLC website and here on Arstechnica.

(Hat tip: Roger Clarke)

Labels: abi, gpl, licensing

Lawrence Lessig has made some comments about the Virgin Australia 'Are you with us or what?' advertising campaign which I blogged about below.

Lessig has also posted a copy of the complaint available here.

Discussion on Slashdot is also available here.

(Hat tip: Matthew Rimmer)

Labels: abi, Creative Commons, licensing

Readers might recall the Virgin Mobile Australia and Creative Commons licensing controversy I blogged about here and here. Basically, Virgin Mobile Australia launched an ad campaign titled 'are you with us or what' which used Creative Commons licensed images available on Flickr. Red flags were raised because Virgin had added comments to the images that some considered derogatory. Further, issues such as the lack of a signed model release form, privacy, moral rights and whether the terms of the license have been satisfied were also raised.

As I have stated in a previous post:

"I think it is essential to reiterate that there are multiple legal issues at play and it is important not to get them confused. While I spoke about issues regarding attribution requirements under the license in my previous post, it is important not to mix this up with moral rights under the Copyright Act (which applies in Australia and are explicitly referenced in the Australian Creative Commons licences, but not in other jurisdictions like the US and the US Creative Commons licenses). Further, moral rights, and terms under the license apply in relation to the copyright owner/licensor- which in many cases is the photographer rather than the individuals in the photographs.

In some respects their advertising campaign is a very interesting use of Creative Commons licensed materials, providing some nice publicity for the photographers who have chosen to add an open license to their material which permits commercial use. However, it is also important for Virgin to read the terms of the license closely and fulfil their obligations under other areas of law."

Very useful information can also be found in this post by Jessica Coates.

According to SMH the family of Alison Chang (a young girl in one the images used by Virgin Australia - with the slogan 'dump your pen friend') has named "Virgin Mobile USA LLC, its Australian counterpart, and Creative Commons Corp" as defendants. Apparently Chang's family have accused Virgin of failing to credit the photographer by name and also accuses the companies of libel and invasion of privacy. Chang's family and the photographer, Justin Ho-Wee Wong, are seeking damages.

As Jessica points out in her post mentioned above:

"...some commentators have suggested that the failure to deal with the issue of model clearances represents a flaw in the CC licences. However, the licences make it very clear that they merely provide copyright permissions, and that they do not purport to deal with any other area of law. Due to the vast number of laws that can come into play when a person is using a copyright work (eg defamation, privacy, competition) it would be impossible for the licences, or the person issuing the licence for that matter, to definitively cover all potential legal issues in placing it releasing it for general use. There is arguably an onus on the person making use of the work to identify any laws their particular use might breach, and to make an effort to obtain any additional permissions that are needed - particularly if their use is large-scale and commercial."

I am not quite sure what will become of all this especially because of the array of laws and different jurisdictions in play. I am actually quite stunned that it has gone this far. It will be interesting to discover in what legal context Creative Commons was named as a defendant in this lawsuit. It is possible that this relates to Creative Commons licenses not dealing with the myriad of legal issues that could be relevant- if this is the case I can't see how this suit will be successful against Creative Commons (for the reasons Jessica points out above).

Labels: abi, Creative Commons, licensing

In this article in the Guardian Corey Doctorow discusses the benefits of free data sharing. Doctorow notes "like a bottled water company, we compete with free by supplying a superior service, not by eliminating the competition".

Labels: abi

Mediadefender, a company that attempts to thwart piracy using curious techniques (for example, flooding P2P networks with spoof files) are the subject of a whole lot of criticism after thousands of company emails have allegedly been revealed to the world courtesy of Hackers, calling themselves 'Mediadefender-defenders' (see SMH article here).

Mediadefender had previously been accused of running a site called MiiVi offering downloads of copyright protected materials. Some have theorised that the site was used to entrap users. Ryan Paul at Ars Technica writes:

"The MediaDefender e-mails leaked this weekend confirm beyond doubt that the company intentionally attempted to draw traffic to MiiVi while obscuring its own affiliation with the site. The e-mails also show that MediaDefender immediately began to recreate the site under a different name and corporate identity soon after the original plan was exposed."

The emails apparently also reveal discussions with the New York Attorney-General's office and possible provision data to this agency. The emails also allegedly contain a draft contract with Universal Music Group, which details the company's pricing structure and 'services'.

Later Paul writes:

"Although many of MediaDefender's innermost secrets have been laid bare by this leak, there are many aspects of the company that remain shrouded in mystery. The ultimate purpose of the MiiVi site, for instance, is still an enigma. In some ways, the information in these e-mails raises more questions about MiiVi than it answers. It is likely that many additional details about MediaDefender's operations will be disclosed to the public as new secrets are uncovered in the e-mails. The rate at which these e-mails propagate across the Internet may also stand as a testament to the difficulty of trying to stand between consumers and their torrents."

Torrentfreak interestingly points out:

"For a business model that gets its life-blood from piracy, in a twisted way this leak is likely to help generate even more business and develop the market. Funny old world."

And all in time for 'International Talk Like a Pirate Day' tomorrow.

Labels: abi, piracy

The MCPS-PRS (an alliance of UK collecting societies) has entered into a licensing agreement with YouTube allowing individuals to upload videos containing copyright protected songs onto the popular website. YouTube will pay an undisclosed licensing fee. This follows similar deals taking place in the US.

More info is available here and here.

Labels: abi, licensing, youtube

More piracy parody clips from the Revue are available here and here.

Labels: abi, Fun, piracy

The Attorney-General's Department has released draft guidelines for the administration of the infringement notice scheme deployed by the Copyright Amendment Act 2006. More information is available here. Comments on the draft need to be returned to the Department by 5 October 2007.

Labels: abi, infringement

Controversy abounds after newspapers pick up on Wikiscanner and uncover a serious of 'interesting' edits from 'interesting' institutions. The Herald reports that staff from the Department of Prime Minister and Cabinet have been editing Wikipedia pages, removing material that be damaging to the Government. Opposition leader, Kevin Rudd has criticised Prime Minister John Howard for "engaging public servants to change Wikipedia" rather than personal political staff.

Premier of NSW, Morris Iemma is also under fire after it was discovered that someone from within the NSW Premier's Department removed a reference to a controversial outburst made by Iemma in a media conference last year.

WikiScanner, which credits itself for "creating minor public relations disasters, one company at a time" has been utilised to spot some interesting 'salacious edits':

• A Dell employee insisting that visitors 'get an apple'.
• Someone from Pepsi removing the section on 'long term health effects' of Pepsi.
• Exxon underplaying the effects of its oil spill.

(More are listed on Wired's "Most Shameful Wikipedia Spin Jobs")

Wikiscanner is a searchable database linking anonymous edits on Wikipedia (where IP addresses are displayed in lieu of a username) to organisations with the associated IP address. Issues have been raised with the fact that it can't be evidenced that the IP was used with authorisation.
If you take a look at the Wikipedia entry for Wikiscanner you can see that no one is without safe (BBC reporting on edits, The Times then reporting on edits by BBC staff etc).

Wikiscanner brings an interesting layer of transparency to Wikipedia, and could be useful tool if the results it shows are reliable. Some organisations have already started banning employees from using Wikipedia (this deals with some of the more embarrassing edits). I suspect that others may start using other tools to ensure that edits can not be traced back to them - and continue whitewashing regardless.

Update: 'The best of recent edits' here.

(Pictured: "Wikipedian Protester", Randall Munroe - via his excellent webcomic xkcd, available under a Creative Commons Attribution-NonCommercial 2.5 license)

Labels: abi, wikis

A 21 year old man from New South Wales has been arrested for recording The Simpsons Movie on his mobile phone and distributing the movie on the internet. The copy of the movie was taken down after around 2 hours however, by that stage, it had been copied many times and further disseminated. It took the police about 72 hours to locate the man and raid his home. The Australian Federation Against Copyright Theft (AFACT) have issued a press release here. Apparently the man is facing up to five years imprisonment. More information is also available in this Sydney Morning Herald article.

I wonder what Comic Book Guy would have to say about all this?

(Pictured: "Congealed Wobbling Blob of Copyright", Abi Paramaguru, Picture is available under either a AEShareNet license or Creative Commons Attribution 2.5 License.)

Labels: abi, infringement

ABC Radio National, Australia Talks discussion regarding the recent ruling by the Copyright Tribunal increasing some music royalty fees. I blogged about this decision here.

(Hat tip: Matthew Rimmer)

Labels: abi, licensing

Creative Commons is planning to launch ccLearn. The project is aimed at minimising the barriers to sharing and reusing educational materials. This will be done using licensing, promoting the use of interoperability standards and educating teachers and learners.

(via BoingBoing)

Labels: abi, Creative Commons, licensing

House of Commons readers will know of the Virgin Australia/Creative Commons images controversy that I have blogged about previously (see ad campaign here). There were plenty of other pictures that Virgin could have used in its ad campaign, for example, why didn't Virgin just use pictures of cats (thereby avoiding issues of model releases, defamation, privacy etc) and, in the great tradition of LOLCATS, build a campaign around that? There are hundreds of thousands of CC licensed cat photos on Flickr so we decided to help Virgin out with this image based on their ad "multi tasking is like swordfighting, it always ends in tears".

Labels: abi, catherine, Fun, lolcats

The Australian has done a follow up article regarding the Virgin Australia advertising controversy (blogged about here and here).

I think it is essential to reiterate that there are multiple legal issues at play and it is important not to get them confused. While I spoke about issues regarding attribution requirements under the license in my previous post, it is important not to mix this up with moral rights under the Copyright Act (which applies in Australia and are explicitly referenced in the Australian Creative Commons licences, but not in other jurisdictions like the US and the US Creative Commons licenses). Further, moral rights, and terms under the license apply in relation to the copyright owner/licensor- which in many cases is the photographer rather than the individuals in the photographs.

In some respects their advertising campaign is a very interesting use of Creative Commons licensed materials, providing some nice publicity for the photographers who have chosen to add an open license to their material which permits commercial use. However, it is also important for Virgin to read the terms of the license closely and fulfil their obligations under other areas of law.

Labels: abi, licensing

Last week I blogged about Virgin Australia's latest advertising campaign, "Are you with us or what", and Virgin's use of Creative Commons licensed images in this campaign. Today there is an article in The Australian titled "Virgin 'in the wrong' on ads". The article contains comments from people unhappy about how they have been depicted in some of the images used by Virgin.

It is important to note that the person in the photograph is not necessarily the copyright owner. Generally it is the photographer that is the owner of copyright, though some exceptions apply, notably, in the case of commissioned photographs. As a result, rights may not arise for the individuals in the photographs under copyright law (they will have the look elsewhere, such as trade practices law, defamation or privacy). This 'photographers and copyright' information sheet by the Australian Copyright Council provides a useful overview.

Theoretically, the copyright owner in all of these cases has chosen to attach a Creative Commons attribution license (which allows for commercial use).

While there are multiple legal issues in play here, I am interested in whether Virgin has satisfied their requirements under the Creative Commons license.

For example, the first image that they use is a turtle ("websites shouldn't take long to load"). The link available on the bottom left hand corner of the picture goes to the Flickr user's photo page (which happens to contain 1,323 photos). From there, you will have to locate the particular photo in question and click on the photo page (I managed to locate Big Turtle in the Masoala Hall, Zurich using tags). Under 'additional information' you can click on 'some rights reserved' to discover that the photo is licensed under a Creative Commons Attribution 2.0 license. I query if link to the user's page provided by Virgin satisfy the attribution requirements under the license. If you look at the legal code for the license above, Section 4 outlines restrictions to the rights granted under the license:

a. ...You must include a copy of, or the Uniform Resource Identifier for, this License with every copy or phonorecord of the Work You distribute, publicly display, publicly perform, or publicly digitally perform...

b. ... You must keep intact all copyright notices for the Work and give the Original Author credit reasonable to the medium or means You are utilizing by conveying the name (or pseudonym if applicable) of the Original Author if supplied; the title of the Work if supplied; to the extent reasonably practicable, the Uniform Resource Identifier, if any, that Licensor specifies to be associated with the Work, unless such URI does not refer to the copyright notice or licensing information for the Work; and in the case of a Derivative Work, a credit identifying the use of the Work in the Derivative Work...

While 'reasonable to the medium or means You are utilizing' allows for a bit of flexibility, it appears to me that Virgin Australia could have done more by way of attribution. They provide a link to the author's Flickr page, however you still have to sift through this to find the actual photo. Only after you find the photo do you see which license is attached (and other details such as the title of the photograph). I am not sure that providing a link - which has a link - which contains a link to the license constitutes 'including a copy' of the license/URI as required under the 4 (a) license. Similar issues arise with regard to 4(b). I would love to hear what other people think about this issue and whether they believe the terms of the licence have been breached.

The Virgin scenario bears a (slight!) resemblance to a Canadian case involving a photographer and the use of a CC licensed image by an MP (the photographer disagreeing with the political views of the MP). Attribution issues were raised here as well.

It is a shame that this and other issues have presented themselves in reference to a campaign that is in some respects an innovative and interesting use of Creative Commons licensed materials.

(Pictured: "Big Turtle in the Masoala Hall, Zurich", alex.ch, available under Creative Commons Attribution License 2.0 license.)

Big thank you to Catherine for her help with this post!

Labels: abi, licensing

The Cyberspace Law and Policy Centre and Linux Australia are hosting a LawTechTalk by Maureen O'Sullivan (lecturer from the National University of Ireland, Galway). The talk considers issues in Free/Libre and/or Open Source Software (FLOSS) licensing, particularly as manifest in the recently finalised GPL v3 and their impact on Spanish-speaking or civil code countries, and her proposal for an international standard law to help free software licenses work the same in all users' countries.

Topic: The Democratic Deficit in Copyright Law: A Legislative Proposal

Date: Wednesday 25 July

Time: 1-2pm

Venue: Room 101, Faculty of Law Building, University of New South Wales

More information is available here.

All are welcome. Hope to see you there!

Labels: abi, free software, seminars

I finally got around to watching this video by Michael Geist and Daniel Albahary. If you haven't already, take a look:

Labels: abi, piracy

Virgin Australia Mobile has started an advertising campaign called "Are you with us or what?" using Creative Commons licensed (commercial use permitted) content available on Flickr. Many images have been used and Virgin has added text to these images. At times the text they have added could be considered derogatory. This has sparked quite a bit of outrage.

Read more in this post on TechnoLlama.

Labels: abi, licensing

When you receive several emails about a copyright related development, all before lunchtime, you know something is up (though it could just say something about me).

Yesterday the Copyright Tribunal approved an application to increase licensing fees for nightclubs and dance parties. The application was made by a copyright collecting society called Phonographic Performance Company of Australia (PPCA). PPCA are calling the decision 'a better deal for artists' I am calling it 'license fee increase of around 1400%- that is massive'.

The decision can be found here [RTF]. Brief outline below.

Phonographic Performance Company of Australia Limited (ACN 000 680 704) under section 154(1) of the Copyright Act 1968 (Cth) [2007] ACopyT 1

Framework: The Tribunal discusses the statutory framework for its power to confirm or vary licence schemes. At [10] they note that this involves "a value judgment as to what it considers reasonable in the circumstances. It is not usually possible to calculate mathematically the correct licence fee in any particular case."

Nightclubs and Dance Parties: The decision discusses a study commissioned by the PPCA raising ground breaking points such as nightclubs play music and sometimes nightclubs have dance floors. Nightclub operators presented evidence of their declining patronage and how they usually operate below capacity. Dance parties are usually one off events, the popularity of these events have also declined according to evidence presented to the Tribunal.

Current Tariffs: Current license fees for nightclubs are 7.48 cents per person per night (number is based on licensed capacity of the venue). The amount is payable for each area where music is playing (if applicable, different rooms, levels etc). Dance parties need to pay 19.8 cents per person, based on estimated attendance.

The Respondents: The Respondents include Australian Hotels Association, Clubs Australia, Clubs NSW, Explorer Cruise Lines Ltd and others together with Nightclub Respondents. Issues raised included the definition of nightclub, whether license fees should be calculated based on attendance rather than capacity, non protected music, whether the extent that patrons are willing to pay for recorded music can be established, the way in which the fee is calculated for dance parties and whether not for profit organisations liked Mardi Gras should be treated differently from other organisations.

Willingness to Pay: The PPCA engaged Allen Consulting Group (you might remember their report into the economic effects of copyright term extension) to estimate the value of sound recordings in nightclubs and dance parties. Allen Consulting utilised a 'choice modelling survey' to determine 'willingness to pay'. The nightclub respondents criticised the survey claiming that it was "divorced from economic and competitive reality" and provided unrealistic choice sets (at [147]) . The case continues with various factors relevant to the assessment of economic impact.

Judicial Estimate: With respect to nightclubs the PPCA claimed $2.32 per person. The Tribunal discounted this rate based on non-protected music (-20%), competition from other late night venues providing live or recorded music (-20%) however chose not to discount for actual patronage being below or above capacity. Further:

"The division of the estimate of willingness to pay should be adjusted to reflect the fact that the entrepreneurial risk in relation to the operation of a nightclub is undertaken by the operator and not by the Society or by APRA...A more appropriate division, therefore, would be 50% to the operator and 25% to each of APRA and the Society. " at [215].

The Tribunal arrived at a figure of $1.05 for the use of protected music at nightclubs.

PPCA claimed $15.37 for value of music at dance parties. This figure was reduced by 20% for non-protected music and entrepreneurial risk, leaving this figure at $3.07 per person.

Not for profit: Mardi Gras made an application under s 157(2) of the Copyright Act seeking a determination that the license scheme is unreasonable in their circumstances. The Tribunal found:

"Clearly, much of Mardi Gras’s activities are intended to serve a community purpose. However, that does not mean that the Society, and its members, must also be compelled to support those purposes. It is not for copyright owners, or any other private group in the community, to subsidise public instrumentalities or charities" at [232].

Outcome: The scheme proposed by the PPCA was approved subject to adjustments (to rates and defintions) indicated by the Tribunal. The application by Mardi Gras was refused.

Thoughts?

The case provides interesting insight into the calculation of licensing fees. The Tribunal noting that:

"The exercise that results in that figure is, of course, to a considerable extent, arbitrary and artificial. Nevertheless, it has a rational basis for arriving at what has been described as a judicial estimate of what a reasonable but not too anxious licensor would require to be paid and what a reasonable but not too anxious nightclub operator would be prepared to pay for the right to play recorded music at nightclub venues" at [217].

In the end, it is the consumer who has to pay. Both through increased prices and, if this leads to closures, then reduced choice. It is the extent of this impact that is unclear. If this decision leads to the closure of less mainstream clubs then it is important to ask which artists are actually getting the better deal.

More reports here (The Age) and here (SMH).

Update: More info on the economic analysis in the Tribunal decision available here on Core Economics (hat tip: Peter Black).

Labels: abi, licensing

(Pictured: "Wikipedian Protester", Randall Munroe - via his excellent webcomic xkcd, available under a Creative Commons Attribution-NonCommercial 2.5 license)

Labels: abi, Fun

Read it here.

Labels: abi, gpl

A few weeks ago Catherine and Abi went to Canberra to attend the ANU College of Law 'Outlaws' Postgraduate Research Conference. Before we left we warned you, our kind readers, that blogging would be temporarily suspended and promised to include some photos that captured 'the essence' of Canberra (see post here). And here's a few to get you started...


We have recently discovered that this is the National Carillon (excellent photography by Catherine Bond).


Catherine was keen to get a new job at the High Court but was told by a security guard that the position of Chief Justice was not yet available (but he took her name for future reference - or possibly - to keep her out in the future).


Finally, as you can tell by the expression on Abi's face- Canberra can be downright joyful (despite the cold)!

If anybody feels that our photos do not truly reflect the essence of Canberra, Matthew Rimmer has kindly suggested the following places:

• The Telstra Tower
• National Museum of Canberra
• The Tuggeranong Hyperdome

After this post however we may not be allowed to leave the House of Commons for some time - so we hope that one day we will be able to visit these sites...

(Pictured: "Cath's shot of the Carillon", "Cath at the High Court" and "Joyful Abi", Catherine Bond, Pictures available under either a AEShareNet license or Creative Commons Attribution 2.5 License.)

Labels: abi, catherine, Fun

Yet another example where a less restrictive approach to copyright protection has opened new doors for revenue:

"The ABC is finalising plans to re-sell The Chaser's War on Everything to overseas TV networks.

The satirical show has grown an international following thanks to the ABC's policy of allowing its shows to be accessed for free through its website and uploaded to video sharing sites like YouTube." (Offshore interest for Chaser's stunts, SMH, 13 June 07)"

Further:

"Gibson added that ABC's decision to make the show available as a free download from its website had actually increased, not threatened, sales of the show on DVD.

This contrasts with the views of most commercial networks, which go to extreme lengths to control the distribution of their content."

Incentive for other networks to consider alternate business models.

The fact that more and more people have been watching the show due to improved accessibility (as easy as hitting 'download') increases the audience of consumers interested in purchasing DVDs (with better quality, deleted scenes, commentary etc- all value adding) not to mention a host of other merchandise (books, clothes etc) and revenue from advertising placed on the show's website.

The success of the model will vary depending on the show (ABC is a public broadcaster). However, it is definitely an approach that should be more widely considered.

Labels: abi, licensing

Bill Leak, cartoonist with The Australian, has been depicting Labor leader Kevin Rudd as Tintin since December 2006. Late last week, Moulinsart, (the firm controlling the copyright of the late Herge, creator of Tintin) based in Brussells threatened to sue Leak over his use of Tintin.

Luckily for Leak, the recently introduced section 41A of the Copyright Act contains a fair dealing exception for the purposes of parody and satire. In light of this, most experts predicted that Moulinsart would not succeed if it decided to take action.

Moulinsart eventually conceded that Leak is free to portray Kevin Rudd as Tintin (yes, the Copyright Amendment Blob won this fight) but threatened to sue if he continued to make the images available for sale via The Australian website (but the war continues). Apparently Leak responded to Moulinstart's letter by saying "I'm not a lawyer, I'm a cartoonist. I poke fun at people for a living. I'm sure Herge would have approved" (source).

A representative for the firm claimed:

"We have no problem with him using Tintin as a parody in his cartoons in the newspaper but when he starts selling them to the public then it becomes more commercial than editorial and he is infringing copyright.... It is passing those cartoons off as something they are not, as something official. He is not permitted to make those sales so we want him to stop doing that and to compensate us for any past sales. Our job is to promote and protect Herge's work and we are very serious about this." ("The Bleak side of Tintin'", The Australian, June 4 2007)

Somehow, I think the many references to Australian industrial relations policy and John Howard might give away the fact that the cartoon isn't quite 'official'. After all, the real Tintin never actually came to Australia.

Sources:

"Satire, with apologies to Herge", The Australian, June 1 2007
"The Bleak side of Tintin'", The Australian, June 4 2007
"Tintin lives on in Leak'toons" The Australian, June 4 2007

Labels: abi, infringement, parody

Our blogposts on the House of Commons will be temporarily suspended for a few days while Abi and I road trip to the nation's capital to attend a conference at the Australian National University Faculty of Law on 'Outlaws'. One of the issues that I will be speaking about is the similarities and differences between Hew Griffiths and David Hicks that Abi blogged about earlier in the year here. After the conference I plan to blog about the issue a bit more, especially since Griffiths's sentence will be given soon, so stay tuned.

Regular blogging will probably commence again next weekend or early next week at the latest. And we promise to license and upload to Flickr any photos we take that capture the true essence of Canberra.

Labels: abi, catherine

You may have seen on blogs and online news forums lately that Youtube released their defence in the Viacom litigation. Dr Matthew Rimmer presents a fantastic overview of the current state of play in this op-ed piece.

A copy of the response from YouTube/Google, filed at the District Court is located here.

Viacom claims that "YouTube has deliberately chosen not to take reasonable precautions to deter the rampant infringement on its site" (see op-ed piece above). Interestingly, on the other side of the coin, 100's of clips from The Chaser's War on Everything were removed from YouTube after a 15 year old boy (claiming to represent the copyright owners) sent a fake takedown notice (read more here and here). Evidently Viacom should save money on lawyers and start investing in an army of high school students.

Labels: abi, infringement

House of Commons friend, Dr Matthew Rimmer on international copyright treaties, the access to knowledge movement and more. Listen to the Radio National interview here (fast forward to part 2, the final 15 minutes).

Labels: abi

What are you doing this World IP Day?

Labels: abi

The March 2007 edition of First Monday contains an article titled "What open access research can do for Wikipedia" by John Willinsky. Willinsky looks at how increasing the amount of external links to open access peer-reviewed journals will 'enrich and enhance' the content available on Wikipedia as well as increase the incentive to publish in open access forums.

The study examines random samples of Wikipedia articles and looks at the number and nature of sources available, open access references and open access potential. Willinsky suggests that "if Wikipedia were to form more of a public access point to this research and if public expectations around this “see for yourself” posture increases, then researchers and scholars may well have a greater incentive to make their published work open access."

Willinsky concludes:

"Wikipedia, in this way, can begin to act as more of a gateway to learning and knowledge, in addition to being a ready reference source. To further link these parallel ways of contributing to knowledge’s public sphere speaks to nothing less than the human right to know what is known. Finding ways of bringing these new approaches to knowledge into closer proximity and association can only strengthen and extend that commons in both its democratic and educational dimensions."

Improving the authority of sources (or putting in sources in the first place) would clearly be a tremendous improvement to Wikipedia. Reinforcing the idea of Wikipedia as a portal to other sources provides even greater incentive for wiki editors to do this. Students and academics can not (or at least should not) cite Wikipedia, and yet, it is often be the first place many people look. It would be very useful if Wikipedia could reliably be used to locate relevant external authoritative literature.

Labels: abi, wikis

Available here.

Stay tuned.

(Post script: See this piece on linux.com, with some views from Stallman, Torvalds and Novell
-- Ben.)

Labels: abi, gpl

Citizendium beta is now open for general reading. The project attempts to rectify some of the quality issues associated with Wikipedia.

Read more about about Citizendium in this guest post by Roger Clarke.

Labels: abi, wikis

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

A picture attached to my previous post about orphan works inspired this response on Twitchgamer (and subsequent dialogue in the comments section) about how to deal with public domain works on Flickr .

Take a look at this follow up post about some of the difficulties associated with licensing on Flickr.

Labels: abi, licensing

Jimmy Wales, a founder of Wikipedia, will be visiting Australia in April and keynoting a series of seminars titled "challenging how knowledge is created". Issues discussed will include the culture of the online community, opportunities for collaborative learning and Creative Commons, the public good and barriers to knowledge sharing.

More details about the seminar available here.

Read more about the impending visit of Jimmy Wales in "Wikipedia founder to visit Australia".

Labels: abi, wikis

Anti-coal group, Rising Tide, created a website sending up an advertising campaign by NSW Minerals Council. In response, the Council has used copyright laws to close the website.

Read more in "Industry closes anti-coal website".

Analysis by Kimberlee Weatherall (via Lawfont) is available at "Notice and takedown, Australian style".

Update: Commentary by Peter Black (Freedom to Differ) is available at "Copyright, Speech and the NSW Minerals Council".

Labels: abi, notice-and-takedown

Some Friday fun...open source style.



(Pictured: "Open Source", Randall Munroe - via his excellent webcomic xkcd, available under a Creative Commons Attribution-NonCommercial 2.5 license)

Labels: abi, open source

Could this be the case of the Congealed Wobbling Blob of Copyright versus the Andrew the blue blob? Steve Baker, winner of Tropfest (an Australian short film festival), is under scrutiny because of the similarity between his winning entry ("An Imaginary Life") and an American TV series ("Foster's Home for Imaginary Friends").

The characters in both are blue blobs (one called 'Bloo' and the other 'Andrew') and they are both abandoned imaginary friends living among other imaginary friends. The copyright owner of "Foster's Home for Imaginary Friends" is apparently "looking into the matter". Baker claims that he has not seen this American TV series before.

More information is available at Now the Blob is Back and Tropfest and TV Lawyers Scrutinise Tropfest Winner. I haven't seen the American cartoon in question but an article in today's Sydney Morning Herald raises a fine point:

"As the saying goes, good artists steal, bad artists plagiarise. Very few works are original. A writer is influenced by previous writers and in some instances improves on the seminal work." (Lawyers Stir the Murky Depths of Plagiarism)

(Pictured: "Blue Congealed Wobbling Blob of Copyright", Abi Paramaguru, Picture is available under either a AEShareNet license or Creative Commons Attribution 2.5 License.)

Labels: abi, infringement

Professor Lessig's response to comments/debate surrounding his (first) post about orphan works.

Labels: abi, orphan works

"Hew Griffiths has been in prison here for nearly three years for allegedly breaching US copyright law. He has been charged by a grand jury in the US, but the offences alleged against him have never been tested, and the Australian Government has refused to resist an American demand to 'surrender' him to face trial before the US District Court in Virginia.

There is no guarantee that the time he has served in prison will be credited against any US sentence, which could be for as long as 10 years.

...

What is particularly fascinating is that it is possible for Griffiths to be charged with these offences under the Australian Copyright Act.

...

Griffiths has instructed his solicitors that he would plead guilty to offences under our Copyright Act. He has probably already spent more time in prison than any person convicted of a copyright offence in Australia.

...

All the British were charged under British laws and the US did not push for extradition. Griffiths is the only person, and the only Australian, in the group that the US is pressing to extradite."

Read more in "Another one sacrificed in the name of alliance", Richard Ackland, SMH.

Labels: abi

Professor Lessig discusses the deregulation of spectrum in his second video on internet policy. See post here.

Trailer description: "Crude radio technology used to make regulating spectrum necessary. Smart radio technology makes it — in many cases at least — unnecessary. We should be pushing to deregulate where technology makes that possible."

Labels: abi, lessig

‘Orphan works’ is a term used to describe works where the owner of the copyright cannot be located. Orphans works are problematic because works can remain unpreserved and unused- and nothing much can be done without locating the owner. The older the material- the more difficult this process is (one of the many problems with copyright term extension). The issue of how to tackle this problem has not been satisfactorily addressed in many countries- including America and Australia.

Canada addressed the issue by allowing the Copyright Board of Canada to issue licenses on behalf of copyright owners in cases where the owner cannot be located. The Australian Copyright Council has recommended adopting a similar approach in its response to the issues paper on fair use (June 2005). However, the approach has been criticised due to the "unpredictability, delay and transactional expense inherent in the current system in Canada that requires a ruling from the Copyright Board" (source).

In January 2006 the US Copyright Office released the result of its inquiry into "orphan work":

"Many users of copyrighted works have indicated that the risk of liability for copyright infringement, however remote, is enough to prompt them not to make use of the work. Such an outcome is not in the public interest, particularly where the copyright owner is not locatable because he no longer exists or otherwise does not care to restrain the use of his work." (p. 1, here).

The report concludes (pp 92-93, here):

• The orphan works problem is real.
• The orphan works problem is elusive to quantify and describe comprehensively.
• Some orphan works situations may be addressed by existing copyright law, but many are not.
• Legislation is necessary to provide a meaningful solution to the orphan works problem as we know it today.

The report recommends that the issue of orphans works be addressed by amending the remedies section of the Copyright Act to limit the remedies available when infringement occurs after the copyright user has conducted a 'reasonably diligent search' to locate the copyright owner and the owner could not be located (see recommended statutory language p. 127, here).

Last year the Documentary Organisation of Canada suggested following the approach recommended by the US Copyright Office.

"While the Canadian provisions may have at one time been exemplary in comparison the lack of any such provisions in most countries, the Canadian solution now appears to be outmoded and even unworkable." (p. 25, here)

Professor Lawrence Lessig recently blogged about the US Copyright Office's report. Lessig applauds the content of the report, however disagrees with its recommendations (and the Orphan Works Act 2006- the Bill proposed as a result of the report). He criticises the recommendations for ‘going too far’ as well as ‘not going far enough.’ Lessig explains that if the recommendations are adopted they would overburden copyright owners and users. Formalisation of copyright has not had to occur in the US since 1976. Copyright owners may have made themselves more locatable if they knew they risked losing control of work if they did not. Immediate implementation of the changes recommended by the US Copyright Office would be unfair to copyright owners. Further, copyright users are obliged to conduct a 'reasonably diligent search.' Such an approach imposes costly obligations on the copyright user. Lessig feels that such a system would be inefficient (on top of an already inefficient copyright system) and increase lawyer involvement (therefore costs).

Lessig proposes an alternative system, which I find very impressive. He suggests that after 50 years copyright owners should be obligated to register their copyright interest. If registration does not occur then the work could either move into the public domain or the copyright owner could have curtailed rights. Such a registry would not be government run, rather there would be many registries competing with each other (keeping the cost of registration low) and such registries would have to comply with government protocols. Lessig recommends a phasing in period to give copyright owners an opportunity to register their interest.

He has prepared an excellent video about orphan works and his proposal- available here. I recommend you watch it if you have 35 minutes to spare. It is well structured and provides some valuable information (despite him saying it is an 'overly long, overly professorial explanation'). It also discussed the issue of applicability to works created outside of America.

What really appeals to me is the efficiency of his proposed system of registration (especially compared with the Canadian example). The proposal also makes it much easier for people to locate the owners of older works. We need a system like this especially in light of developments such as copyright term extension. Obviously there are a few loose ends to tie up- examples include:

• What dispute resolution mechanisms are in place in situations where two people claim ownership in the same work. Further, is it possible for the registration system to be exploited?
• When must you register the interest? (Anytime before 50 years? Anytime before copyright term expires?)
• What identifying information is placed in the registry (an actual copy of the work?). Photographs present a big problem- especially if there is limited identifying information available to you. If there is no title or creator- what is the next step? How can you be sure that this work isn't registered?
• If you find a work with no author or title and you don't know when the work was created- you will still be unable to use it- even if it isn't registered. This is because you don't know if the required period of time has expired. Granted you could wait 50 years. However, the system proposed by the US Copyright Office would not present the same obstacle.

These are just some examples. Many can be teased out. The proposal by Professor Lessig has great potential and is something that governments should take into serious consideration.

(Pictured: "A Copyright will Protect you from PIRATES", loan Sameli, available under Creative Commons Attribution-ShareAlike License 2.0.)

Update: The attached picture was apparantly published in The New York Clipper, November 03, 1906- the picture appears to be in the public domain [see comments for more info].

Labels: abi, orphan works

Occasionally you will come across a pirated DVD where the sound is a bit muffled, the camera is a bit shaky and the odd shadow of a person - probably requiring a popcorn refill- apppears in front of screen. Who is to blame for the shoddy camera work? Why the Canadians of course!

Read more in an article and post by Dr. Michael Geist. Geist explains why figures released by the Motion Picture Association of America and its Canadian counterparts demonstrating how Canada has become the world's leading source of movie piracy might be "more fiction that fact".

Hat tip: Roger Clarke

(Pictured: "Pirate Deck at Club Earl", Earl-What I saw 2.0, available under Creative Commons Attribution-NonCommercial-ShareAlike License 2.0 license.)

Labels: abi, piracy

Wikipedia is not happy with Microsoft after Microsoft offered to pay Australian blogger, Rick Jelliffe, to 'correct inaccuracies' on Wikipedia pages relating to Microsoft Office Open XML. It has been reported that Microsoft asked Jelliffe to disclose the deal on his blog.

On his blog, Jelliffe states:

"I think I’ll accept it: FUD enrages me and MS certainly are not hiring me to add any pro-MS FUD, just to correct any errors I see."

"Brooker said Microsoft had gotten nowhere in trying to flag the purported mistakes to Wikipedia's volunteer editors, so it sought an independent expert who could determine whether changes were necessary and enter them on Wikipedia." [SMH]

• Wikipedia has been the victim of quality issues for a while (see guest post by Roger Clarke). By paying impartial experts who would not normally invest much time editing Wikipedia, the quality of articles will also increase.
• Anyone can edit Wikipedia. Alterations that aren't impartial are swiftly rectified. Mechanisms are in place to ensure that articles remain neutral (kinda).
  

Microsoft paying an impartial expert to edit Wikipedia pages is not ok because:

• Their actions could set a precedent that leads to the exploitation of Wikipedia for commercial advantage.
• The perception of bias is almost as dangerous as actual bias.
• They upset the creators of Wikipedia :(
  

I am inclined to wait and see what happens before throwing up my arms in disgust.

In the meantime, enjoy the lovely cartoon from xkcd.

(Pictured: "The Problem with Wikipedia", Randall Munroe - via his excellent webcomic xkcd, available under a Creative Commons Attribution-NonCommercial 2.5 license)

Labels: abi, wikis

When we tagged Kim Weatherall with the 'five things you didn't know about me' meme we weren't quite expecting her to reveal the fifth 'thing':

"And here's the last thing you didn't know about me: I am now writing my last ever post on Weatherall's Law. Yes, I've decided (and I've told a few people this recently) that it's time for Weatherall's Law to retire."

This is sad news for the IP Blogosphere. Kim has been blogging since 2004 with depth and quality that is rare in the blogging world. Weatherall's Law was essential reading for anyone interested in Australian intellectual property issues. Kim's recent analysis of the Australian Copyright Amendment Act 2006 has produced some of her best posts ever and she must be credited for her tireless dedication to ensuring that Australian consumers, educators and researchers received a better bargain under the recent amendments. Without Kim's critiques, submission and appearance before the Senate LACA Committee, the Australian copyright commons would undoubtedly be worse off.

We understand that Kim is moving on to bigger and better things now (that's right, academics do need to do publications once in a while). The House of Commons wishes Kim all the best in her future endeavours.

Kim mentions that she hopes that one day, someone will teach her programming. Ben and I will happily oblige next time she is in town. However, for the time being, let's send Kim out in style (and begin her programming tutelage) with an adaptation of the first thing every programmer learns, "Hello World" (C++):

#include <iostream>
using namespace std;
int main()
{
cout << "Goodbye Weatherall's Law, Hello World!" <<endl;
std::cout<<"Goodbye Weatherall's Law, Hello World!"\n;
return 0;
}

Update: I am told that the use of "endl" in this program will lead to certain disaster so the program has been revised upon the advice of a "C++ language paralegal". See the comments for more info.

(Pictured: "Copyright", Randall Munroe - via his excellent webcomic xkcd, available under a Creative Commons Attribution-NonCommercial 2.5 license)

Labels: abi

At most houses you will find the usual Christmas paraphernalia such as trees, holly and Christmas stockings. You won't have the same experience here at the House of Commons. The visitor this particular Christmas is the Copyright Amendment Act 2006. To pay homage to the Copyright Amendment Act we have decided to decorate the Congealed Wobbling Blob of Copyright in lieu of a Christmas tree.

Thank you Attorney General Mr Philip Ruddock. Thank you for the gift of Congealed Wobbling Blob of Copyright.

So us housemates and the Congealed Wobbling Blob of Copyright wish all of you a very Merry Christmas and a Happy New Year.

And when you are singing Christmas carols in public, or perhaps recording your 4 year old on your mobile phone, singing along to the Wiggles cd you bought her for Christmas- beware...the Congealed Wobbling Blob of Copyright may creep up when you least suspect.

(Pictured: "Christmas Congealed Wobbling Blob of Copyright", Abi Paramaguru, Picture is available under either a AEShareNet license or Creative Commons Attribution 2.5 License.)

Labels: abi, Fun

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

"Free software is a matter of liberty, not price. To understand the concept, you should think of free as in free speech, not as in free beer." (Richard Stallman, Free Software Definition)

December 15 2006 is the fourth anniversary of Creative Commons. What is the best way to celebrate? With a cool refreshing glass of free beer of course!

What is free beer? It is promoted as "beer which is free in the sense of freedom, not in the sense of free beer." The project is the brain-child of a Copenhagen based artist collective called Superflex and a group of students at a Copehagen IT University. The underlying idea involves the application of free software/open source principles to a tangible item (close to the heart of many) - namely beer.

How do they go about it? The branding and recipe is released under a Creative Commons (Attribution-Sharealike) license. This means that anyone is free to produce and sell the beer and brew their own modified version of the beer, as long as they share the modified recipe. The recipe for Free Beer version 3.0 (codename: "Skands") is available here.

Lawrence Lessig rightly points out that recipes are not copyrightable. But I wonder- does this matter when it is the best beer you have had all year?

Richard Stallman seems to like the idea but unfortunately, does not drink beer.

Anyway, if you happen to be wondering around Blågårdsgade 5, Copenhagen on the 15th of December why not put on your dansende schoenen and join in the festivities for the fourth anniversary of Creative Commons. Creative Commons Denmark and the folks from Free Beer will be there. If that isn't enough enticement remember- Free Beer is now available on tap.

(Pictured: "My glass of beer", Lupinanto-Antonio Pennisi, available under a Creative Commons Attribution-NonCommercial-NoDerivs 2.0 License)

Labels: abi, Creative Commons, Fun

Jimmy Wales, founder of the Wikimedia Foundation (parent organisation of Wikipedia) has announced the next big thing to hit the wiki landscape. Openserving.com "extends the essence of the open source model-free software and content- to all aspects of web based computing."

The six pillars of OpenServing are:

"FREE software, FREE bandwidth, FREE storage, FREE computing power, FREE content over the Internet, and GIVING AWAY 100% of the ad inventory and revenue to bloggers and website owners who partner with Wikia" [Wikia press release].

The project may open the door for many more collaborative content projects, giving adminstrators of websites the opportunity to make money in the process.

“Social change has accelerated beyond the original Wikipedia concept of six years ago. People are rapidly adopting new conventions for working together to do great things, and Wikia is a major beneficiary of that trend. OpenServing is the next phase of this experiment. We don’t have all the business model answers, but we are confident – as we always have been – that the wisdom of our community will prevail” [Jimmy Wales, Wikia press release].

The project is an interesting nexus between open software and open content (as are the other wiki projects). I will be interested to see how this 'next level' wiki project unfolds and the resulting impact on the commons. At the very least it opens the door for a few more Star Wars, Star Trek and Doctor Who wikis to populate the World Wide Web. ..and that has to be a good thing...right?

(Pictured: "Wikifriends", Randall Munroe - via his excellent webcomic xkcd, available under a Creative Commons Attribution-NonCommercial 2.5 license)

Labels: abi, wikis

The Copyright Amendment Blob/Congealed Wobbling Blob of Copyright has taken the world by storm. So it is time to put the blob through its paces. I applied my version of the infamous trivia game, Six Degrees of Kevin Bacon, and here is what I came up with:

1. Kevin Bacon starred in the movie Sleepers alongside Robert De Niro.
2. Robert De Niro produced the movie Entropy which featured a special appearance from U2 front man-Bono.
3. Bono is one of many starving artists who were signatories to the full-page advertisement in the Financial Times pleading for a "fair play for musicians." Apparently, a 50 year term of protection for sound recordings isn't enough and the group of artists petitioned the government to extend the term to 95 years. In fact, the cause was so compelling that some artists managed to raise themselves up from the dead to put their name to the document. [Read more about the plight of Bono and like-minded artists in this article by Marina Hyde]
4. The advertisement, "fair play for musicians" was a response to the Gowers report which recommends (among other things) the copyright term for sound recordings be maintained and not extended. Andrew Gowers, author of the report, is quoted as saying that extension of the copyright term beyond 50 years would only benefit "an exceptional few stars who are already fabulously rich." [Excellent commentary on the report can be located on Weatherall's Law and TechnoLlama.]
5. The report prepared by Andrew Gowers simply follows Australia's lead on copyright. Well, such is the case if you ask our Attorney General Mr Philip Ruddock. I query why Gowers even bothered writing the 140 page report when apparently all that was required was "See Australian Copyright Law" (we housemates much prefer "See Blob"). [Read about the similarities in this post from Weatherall's Law]
6. As we all know, Mr Philip Ruddock is intimately acquainted with the Congealed Wobbling Blob of Copyright/Copyright Amendment Blob/ Copyright Amendment Act 2006. [Read more here in previous post by Catherine Bond (featuring the blob).]

And thus, it is demonstrated- Kevin Bacon is within six degrees of the Copyright Amendment Blob. Are you?

(Pictured: "a little more than six degrees of Kevin Bacon", Matt Leclair, available under a Creative Commons Attribution-NonCommericial-ShareAlike 2.0 license)

Labels: abi, Fun

The legal validity of Creative Commons licenses in Spain have been questioned in a recent court decision.

Read more here in a post by Andres Guadamuz.

Labels: abi, Creative Commons

Catherine Bond, our resident iPod expert, has written an issues page, "iPods and copyright infringement" and opinion piece, "iShufflin’ that law through..." for online youth organisation, 'ActNow'. Catherine explores how some of the changes brought about by the Copyright Amendment Bill 2006 may impact on under-25-year-olds.

(Pictured: "So Tiny", LarimdaME, available under Creative Commons Attribution-NonCommercial License)

Labels: abi

After reading some of the commentary out there about GPLv3 you could be forgiven for thinking that the impending release of the new GPL will lead to the destruction of all that is good in the land of programming. With GPLv2 supporters like Linus Torvalds declining to adopt GPLv3 it is hardly surprising that the world (or at least the FLOSS world) is so divided.

So will planes fall from the sky when GPLv3 is released and all software licensed ‘version 2 or later’ finally ticks over into GPLv3 mode? Is GPLv3 part of Richard Stallman's plan to launch a “dictatorship of the programmers”? This housemate thinks not. I was thrust into the world of GPLv3 as part of research for an upcoming symposium (see details below) and it became clear that GPLv3 is the subject of heated debate.

There are a few GPL ‘hot issues’ and DRM is one of the more burning of said issues (if you don’t believe me just look at how red it is on the GPL comments page). What is all the fuss about? The general idea is that DRM is being used to ‘evade’ rights/‘freedoms’ provided under the GPL and this practice is not acceptable. The FSF is sending the message that technical evasion of the GPL is not ok. The message is loud and clear but some have queried if such an endeavour is desirable or even possible. The thing is, not all DRM is necessarily bad (consider the use of DRM for medical equipment or security purposes). Some Kernal developers have questioned if a software license is a sensible place to put all these anti-DRM provisions and suggest that these provisions are included for the service of political ends.

What do I think? I understand that the FSF is concerned about protecting the core freedoms in the GPL however I not sure if protection should be at any cost. It is important to bear in mind that inserting Anti-DRM provisions to protect particular freedoms will always be at the cost of other freedoms. That being said I disagree with people who suggest that GPLv3 “has the potential to inflict massive collateral damage upon our entire ecosystem and jeopardise the very utility and survival of Open Source.”

Final judgment will have to be reserved until draft 3 is released. In the meantime go to the FSF website, read the current draft and make your comments.

Don’t forget to register to attend GPLv3 and Australia, a symposium that looks at GPLv3 issues from a uniquely Australian perspective. We have contributions from Andrew Tridgell and Eben Moglen as well as an excellent panel of expert commentators. More information is available at http://www.cyberlawcentre.org/2006/gpl/.

(Pictured: "gnu", Creative Commons Attribution-NonCommercial 2.0)

Labels: abi, gpl

Why has the Copyright Amendment Bill 2006 been so rushed? Do the amendments go too far? Do the amendments go far enough? What does it all mean?!

These questions and more discussed by Attorney-General Philip Ruddock, Dr Matthew Rimmer, Dr Melissa de Zwart and Dr David Brennan on ABC Radio National show, Australia Talks Back- "Piracy, Consumers and the Digital Age".

Labels: abi, legislation

A warm welcome to all visitors of the brand new Unlocking IP blog the “House of Commons”. It is our great pleasure to open these doors for the first time. The house is a testament to what happens when a researcher consumes too much coffee at the same time as reflecting on a very interesting area of research (this is how it was conceived). Working on the Unlocking IP project (one of the research projects conducted by the Cyberspace Law and Policy Centre) I realised how much there is to learn about the ‘unlocking’ potential of intellectual property and the notion of ‘the commons’. A blog seemed like the obvious next step for our project. It presents a dynamic forum to communicate ideas, get feedback and have some fun at the same time.

The tenants of this house are several members of the Unlocking IP research team, namely, Catherine Bond (often found sitting in the study underneath pages of legislation and clutching copyright notices), Ben Bildstein (on the front porch, laptop in tow, frantically programming and inching closer toward discovering his inner geek) and Abi Paramaguru (running around and making sure everything is in order before collapsing asleep on the kitchen table). The three of us will post the bulk of the content in our bloghouse. However, in the near future, we hope to welcome posts from some of the amazing people affiliated with our project as exciting houseguests.

It has been a long journey and the house is still being renovated (excuse the rubble) but we hope every visit is worthwhile. We encourage you to bring friends and visit as often as you are able. Most importantly we hope that what you see inside provokes you to take a look at intellectual property from some different perspectives.

Cheers!

Labels: abi