Internet Industry Association gets involved in iiNet downloads case

The Internet Industry Association (IIA) has made an application to become “friend of the court” in an upcoming legal battle between copyright groups and an ISP over illegal downloading. While APC could be said to be a bit extreme in saying this civil action could “shut down the Internet” the outcome of the case could nevertheless have significant ramifications for online usage in Australia. The industry body Australian Federation Against Copyright Theft (AFACT) is alleging the ISP iiNet infringed copyright by not preventing customers from downloading pirated material.

Because of the potential knock-on effects, the IIA, which represents the wider Internet community as well as ISPs, has applied to be amicus curiae, a ‘friend of the court’. Though it has yet to make a submission, AFACT has opposed the application because it thinks the IIA will be biased because iiNet is a member. (photo by Harry CC BY 2.0)

AFACT took the initial action in November last year claiming iiNet ignored repeated notices which identified thousands of illegal file transfers over their network. These included movies such as "Happy Feet" and "I Am Legend" which users obtained using BitTorrent peer to peer technology. iiNet’s managing director Michael Malone called it an unfounded allegation and said it was not their job to police traffic on their network. “If someone is breaking the law, let the police and the courts do their job,” he said.

The case shows that the industry wants to turn the screw on ISPs to stop illegal downloads and is starting with the easy-to-handle small fry. iiNet says it does not support piracy in any form but it would be naïve to believe it is not common. According to the ABS just 30 percent of all Australian users were on Broadband in 2005, but three years later that figure had risen to 84 percent. With faster Internet connections now the norm, downloading content has never been easier or more commonplace.

Copyright owners cannot directly identify infringers but can identify IP addresses. Once identified, they send infringement notices to providers. But Australia does not have blanket agreement between content companies and broadband providers about file swapping. While some ISPs such as Optus forward infringement notices to customers, others like Telstra ignore them completely. According to Malone, iiNet is in the active camp and passes along each complaint to state police who share the building with the ISP. He says what AFACT wants his company to do is impossible. They cannot act on allegations against customers. "AFACT seems to expect ISPs to be judge, jury and executioner here", said Malone. "We are meant to take their unfounded allegation, then cut customers off.”

According to digital media academic Tama Leaver, the case will test the safe harbour provisions which were brought in during the recent Free Trade Agreement with the US. The provision provides some immunity for ISPs when providing carriage services. The law limits remedies to infringements when transmitting, hosting, caching or referencing information according to Division 2AA of the amended 1968 Copyright Act. But AFACT are claiming iiNet are in breach of sections 115 and 116 of the Act (immediately prior to Division 2AA in the Act) which are the provisions which deal with infringement of copyright.

AFACT is the film industry’s enforcer to act on piracy claims. According to its website, its heavy hitting members include Village Roadshow, Walt Disney, Paramount, Sony, News Corp, Universal and Warner Bros. All these companies are listed as plaintiffs in the matter alongside the Seven Network. They have asked the court to order iiNet to act to prevent the continuing unauthorised use of their material by customers. It says piracy results in lost jobs, and limits investment in new programs and films, as well as in new technologies which benefit consumers. The presiding judge will make a decision on the IIA’s amicus curiae application in the coming weeks and the Federal Court trial will commence 6 October.

This case will be well worth following because of how it might affect the copyright law faultline between the rights and benefits of authorship and the general public’s right to enjoy created products.

How Sky caved in to Joe from Twitter

(Photo by Joe Neale @Joe - used with permission).

As Londoner Joe Neale has just found out, News Corp wants to charge for content on the Internet while not being averse to using other people’s content for nothing.

Joe's story began two weeks ago on 5 August with events that seemed to have nothing to do with him. On that day two police officers from Kennington police station in London were patrolling near Waterloo station when they stopped to question a man on a bicycle. As the officers approached him, the man dumped the bike and ran away. As he did so, he fired shots at the officers leaving two of them injured in the vicinity of Southwark tube station. It was Joe Neale's fate to be walking past the tube station at the time. He snapped a picture of the crime scene (see photo above) which he immediately loaded to Twitpic with the caption “Holy crap police man shot at Southwark tube station!”

Neale had to rush to meetings so did not immediately notice that others were paying close attention to his picture. The shooting of two policemen in London is meat and drink for News Corp's Sky News and they were quick to publish an article about it. They found Neale’s Twitpic and used it to illustrate the story. Sky captioned the photo with the credit “Joe from Twitter”.

But it turns out that Joe is not just anyone from Twitter. Neale is the original @joe on Twitter with 20,000 followers and is the head of End User Programmes at software licencing company Symbian. Sky could have found all this out by looking at his Twitter page. There they would also have found out he is a former Murdoch employee. Neale’s previous job was MySpace UK Content Manager. This meant he knew who to talk to in News Corp.

Friends of Neale told him that Sky was using his picture. His first reaction was one of delighted amazement. Neale sent a couple of tweets to Jon Gripton, news editor of Sky News Online saying he was “really pleased” Sky had used the photo. He asked them to change the attribution from “Joe from Twitter” to “Joe Neale http://www.twitter.com/joe”. Gripton responded after 5 hours saying “Will do Joe - give me a minute to talk to the team”. Gripton also requested Neale to follow him in Twitter so that he could send him a direct message. Neale appreciated the response and asked jokingly “how many beers” the picture was worth. A day later the pair were following each other but Neale complained he still had not yet gotten an email response.

Sky changed the attribution but were in no mood to divulge how many beers they thought it might have been worth. But Neale was no longer joking and found out for himself. He checked the terms of service of Twitpic which specifically said "All images uploaded are copyright © their respective owners". He sent Sky several emails but got no response. But after two weeks of silence from Sky, Neale hit back using the power of social media. Two days ago on Wednesday 19 August, Neale published the content of the email on Twitter using the #skypic hashtag. Part of the email read as follows:

My photo was used without permission on the sky news website on the 5th of August 2009, and was taken from my Twitter feed without my permission(I have 20000+ mainly UK based followers including a large section of press/media folk).

Neale went on to tell Sky the conditions he demanded for using the photo without permission. It would be £300 for the initial use on the front of the site and then charged at five percent for each of the two weeks it was used by the site (note: Neale's picture has now been removed from the Sky report of the shooting linked above in the first paragraph).

To hammer home the point, he sent out further tweets using the tag #skypic, which read: “Newscorp use your photos without permission but have plans to charge for reading their content” or “Newscorp vs citizen journo”. Neale’s network got involved and put out 200 retweets of #skypic.

After 24 hours, Sky caved in and promised to pay £330.75. The promise came in an email they sent Neale yesterday which read: “I’m sorry my colleagues didn’t get back to you as soon as you would have liked. We always acknowledged your copyright, & I’ve forwarded on your invoice for payment – here it is attached with the relevant SY number inserted in case you’ll need that if you need to chase it up. Just be aware that payment should take approx one month to get through the system.”

The game is not over till the cheque is in Neale’s bank but for now the score is Citizen Journo 1, News Corp 0.

Parallel importation of books: Cultural benefit vs consumer cost

Big changes are afoot in Australia’s lucrative book buying business. Australians currently spend $2.5 billion each year on new books at retail book chains, independent bookstores and increasingly, online and the sale of these books is governed by the Copyright Act 1968. The federal government is looking to change the law to remove the concept of “parallel importation” which was added to the act in 1991. This refers to importation of products containing copyright material made legitimately in the country of manufacture. The concept is used in the world of books, CDs, computer software and computer games but after further changes to the law in 1998 (sound recordings) and 2003 (computer games) it now only applies to books in Australia. It restricts the parallel importation of books which protects authors who own Australian rights from competition from foreign editions of that title.

Local writers, on the whole, are happy with the copyright restrictions. Author Tim Winton calls copyright “the single most important industrial fact in a writer's life, the civilising influence of a culture upon a market”. As well as giving authors a number of exclusive rights over their original material, copyright has a territorial provision. This gives creators the right to earn a premium for sales in their home country while only earning “export royalties” for overseas sales. The catch is that the Australian creator needs an Australian publisher to earn the higher royalty otherwise any local earnings is considered export. The dilemma for authors is whether to forego these local earnings in order to gain access to the greater reach provided by a London or New York publisher. Up to the 1980s, most authors went with overseas publishers.

In 1991 the Hawke Government came up with a novel solution to this problem to promote the local industry. It brought in the 30 day rule. This is “use it or lose it” legislation that allow Australian publishers 30 days to publish a version of any book that has been released anywhere in the world. If the book is published within 30 days, all booksellers are obliged to purchase the publication from the Australian publisher and cannot import the book from an overseas publisher. However this nifty solution did not envisage how the Internet would muddy the waters. Overseas online books are not subject to the order and do not incur GST at the point of sale.

The Council of Australian Governments' Meeting of 3 July 2008 discussed the import monopoly issue under the larger aegis of competition reform. The issue under discussion was whether the 30 day rule results in higher prices and less availability of books to Australian consumers. In November then Assistant Treasurer Chris Bowen requested the Productivity Commission to examine the provisions of the Act. The government called for submissions from the public and there were 272 responses.

Most authors saw the changes as “cultural suicide” and were bitterly opposed to any watering down of the 30 day rule. Peter Carey’s view was typical. “As long as we have a territorial copyright our publishers have a commercial argument to support Australian literature,” he wrote to the commission. “They will battle for the sake of our readers and our writers, even if their owners have no personal commitment to the strange loves and needs of Australian readers, or the cultural integrity and future of the Australian nation.”

Local publishers such as Allen & Unwin and McGraw-Hill are also keen to see the status quo preserved. They both say the local market is strong and competitive and this is due to the stability provided by the existing territorial copyright arrangements. Allen & Unwin said there is a cultural benefit also with 14,000 Australian books authored every year.

But the big retailers say the publishers are “showing disdain for the Australian consumer”. The so-called Coalition for Cheaper Books represent Dymocks, Coles and Woolworths. The effect of the 30 day rule, they say, is higher prices, less availability and the concentration of market power in the hands of publishers. They believe the removal of the rule will lead to lower prices and quicker availability. The problem has been brought to a head as the retailers lose $100 million of business each year to Amazon which did not exist when the 1991 policy was formulated.

The Australian Competition & Consumer Commission (ACCC) took a minimalist intervention stance in their submission. It questions whether there is quantifiable data that supports the societal benefit of the 30 day rule. “Given that the parallel import restrictions amount to a restriction on competition,” it says, “the onus of demonstrating such benefits should be on those advocating for their retention.” The ACCC said the removal of similar laws in New Zealand in 1998 resulted in lower or stable prices, improvements in supply and service and product differentiation. It also had no effect on the local creative book industry.

But although the Australian rule is contrived, it seems to work. While the Internet components need to be addressed, the question is whether we want to risk the destruction of a large and vibrant local industry in name of making books a dollar or two cheaper. The Productivity Commission sensed that concern when they released their draft findings to the Government in March. The main recommendation is that publishers still be protected from parallel importation, but only for the first 12 months.

The publishers and authors are angry with this outcome. As author Kate Grenville noted cultural externalities can’t be quantified in a way that will have any traction in a debate about economics. However, Andrew Norton sees it as largely a win for them “as most of the profits from a new release will be made in the first 12 months”. We shall soon see. The Commission has delivered its final report on 30 June (not yet in the public domain). The changes, whatever they will be, should make their way in Australian law later this year. The economic benefits might kick in immediately, but the cultural consequences will take a lot longer to be felt.

UPDATE (Tuesday 14 July): The Productivity Commission has released its final report. It has gone further than the interim version and called for the 30 rule to be scrapped. Quote: "From the available quantitative and qualitative evidence, the Commission has concluded that the PIRs [parallel import restrictions] place upward pressure on book prices and that, at times, the price effect is likely to be substantial."

Lawrence Lessig brings his cyber-change message to Australia

Internet law expert Lawrence Lessig says more people are making money on music today than 20 years ago because of the way digital technologies have increased diversity and availability. Speaking to the ABC on Thursday, the American academic said that while free downloading had destroyed the music companies’ business model, many artists are experimenting with different ways to succeed in their business. “It might not make record companies happy but I think that diversity is something we should be celebrating,” Lessig said.

Lawrence Lessig knows what he is talking about when it comes to copyright. He is a professor at Stanford Law School and founder of the school’s Centre for Internet and Society. He is probably also the world’s foremost academic in intellectual property law and writes a hugely influential blog. Lessig was in Brisbane on Friday to give a presentation at the Law Courts Complex in George Street. I was unable to attend due to a clashing appointment. However QUT law lecturer Peter Black was there and put out a useful summary of Lessig’s key points as a live Twitter stream at #lessigqut. In less than half an hour, Lessig covered a typically wide range of material which covered the complex relationships between money, trust, dependencies, politics and law.

The multi-talented Lessig will turn 49 on Wednesday. He has degrees in economics, management, philosophy and law from the Universities of Pennsylvania, Cambridge and Yale. Lessig said his philosophy experience at Cambridge radically changed his values and career path and turned him from a young republican into a liberal political activist. He has also served his time in the courts. Before starting his academic career, Lessig clerked for Justice Scalia of the Supreme Court and Justice Posner of the Federal Court’s 7th Circuit Court of Appeals.

Lessig’s abiding passion is ideas and their future in the wired world. His emphasis is on the correlation between network technologies, intellectual property laws and the free flow of information. He was greatly influenced by Julien Dibbell’s 1993 “A Rape in Cyberspace” about the breaking of online rules of identity. Lessig said Dibbell's story was “why he taught cyberlaw”.

He would go on to revolutionise cyberlaw thinking with his analysis of the premise that “code is law”. By this he meant that the architecture of the Internet could control the way it was used, which was anathema to the Net's early hyperlibertarians. Lessig showed that by controlling the hardware and software, governments could control the Internet. His fame quickly spread to other areas of modern communications. Justice Sandra Day O'Connor cited Lessig when the Supreme Court overturned the Communications Decency Act, and Judge Thomas P. Jackson asked Lessig's advice on an antitrust ruling against Microsoft Corp.

In 2008 Lessig was rewarded with the Monaco Media Prize. The prize acknowledges “innovative use of media for the betterment of humanity” and was awarded by the Monaco Media Forum, an invitation-only, non-profit conference of 300 of the world's key players in both new and "old" media. Presenting him with the award, Monaco’s Prince Albert called Lessig a pioneer. Lessig, he said, was “a peacemaker who has bravely walked into one of the most hotly contested battles of the Internet age: copyright and the whole question of the 'ownership' of content in a digital world."

However as his Brisbane speech indicates, Lessig has recently been pioneering in a more political direction. On Friday Mother Jones reported about how Lawrence Lessig’s new organisation Change Congress is aiming to expose and curtail the influence of money in politics. At Austin’s SXSW conference in March, Lessig noted how politicians desire to help their constituents was merely a means towards tenure and the lobbying required to get there erodes voters’ trust of their representatives.

Early last year there was talk that he might run as a voters' representative himself. The opportunity arose to stand for congress in the seat held by Tom Lantos, a California Democrat who died in February 2008. But the early polls were not encouraging and he left the field to a serving politician. As CNET’s Declan McCullagh wrote, Lessig would have been a principled and intelligent campaigner for copyright reform and fair use rights but voters want more from a politician than “a law prof who takes on Disney, Mickey Mouse, and the duration of copyright.” But while Lessig cannot yet make his legislative stamp match his judicial one, he remains an important power both in the courts and in cachet.

Radiohead declares war on the record industry

Radiohead front man Thom Yorke has hit back at record label EMI for suggesting the reason the band left the label because it refused to come to a $20 million deal. The spat comes in the wake of Radiohead’s independent release of its new album In Rainbows to huge acclaim. Speaking on the band’s website Yorke denied money was the reason for leaving EMI. “What we wanted was some control over our work and how it was used in the future by them,” he said “That seemed reasonable to us, as we cared about it a great deal”. Yorke also warned new bands not to sign a record contract that strips them of their digital rights.

The claims come as Radiohead finally releases the CD version of In Rainbows after releasing it three months ago online in what the New York Times called a ‘tip jar’ arrangement. The same article now questions whether anyone will fork out hard cash for the “material” version of the same product. But Radiohead have pre-empted the question by promoting the CD release with a “prerecording” of the band performing songs from “In Rainbows” on their own website and on Current Television as “Scotch Mist”.

This is extremely clever marketing by the band. On 10 October, Radiohead released In Rainbows as a digital download. For the next two months fans could download the album and pay whatever they wanted for it or indeed proffer no payment at all. The move caused a sensation in the music industry. No band as big as Radiohead had ever done such a thing. Besides the media hype, the music won the plaudits of critics as diverse as Pitchfork and Wired. The ploy also worked brilliantly from a public relations perspective, In Rainbows is the most talked about album of 2007. However the band has not released any figures about exactly how many downloads were made or how much people paid for them.

The band has recently celebrated its 21st anniversary. The original four members were all public schoolboys at Abingdon school in Oxford. Yorke (vocals), Ed O'Brien (guitar), Phil Selway (drums) and Colin Greenwood (bass) formed a band in 1986 called “On a Friday” celebrating the day on which the foursome got together to practice. Greenwood's brother Johnny soon joined on synths and guitars. But the band did not gain much momentum until after they completed their various degrees in the early 90s. They played in the indie scene in Oxford and eventually attracted the attention of the recording industry. They signed with EMI in 1991.

EMI’s first advice was to get the band to change their name. Singer Thom Yorke decided they would take their name from the Talking Heads’ song “Radio Head”. Radiohead’s first EP with EMI “Drill” in 1992 is now a sought-after collector’s item but at the time failed to break the British top 100. Their breakthrough came when their 1993 Creep EP reached number 2 in the Billboard Modern Rock Track Chart.

Despite this, the first album Pablo Honey (including the song “Creep”) failed to excite. While their 1995 second album The Bends got critical acclaim and some success, they had to wait until 1997 and the release of Ok Computer to really scale the musical heights. The album was a critical and commercial success and spent 71 consecutive weeks in the UK Charts. According to ‘reluctant fan’ Jon Lusk, the album captured the zeitgeist of the despairing-yet-hopeful dying days of the British Conservative administration. Others said the band had caught a wave of generational anxiety. Whatever it was, the album was quickly proclaimed one of the greatest albums of all time.

Radiohead found it difficult to work out what to do next after the plaudits of Ok Computer. They took a leisurely three years before they released Kid A. Without any proper marketing, Kid A went straight to number one. Fans were eager to soak up the new Radiohead experience. Critics raved; Pitchfork gave it ten out of ten. This new album was a stark, bleak experience and mostly synthesised. Brent DiCrescenzo perceptively called it the “sound of a band, and its leader, losing faith in themselves, destroying themselves and subsequently rebuilding a perfect entity.” But after the hype had calmed down, this perfect entity had infuriated as much as it inspired.

Amnesiac was released in 2001 comprising of additional tracks from the Kid A sessions. It too was successful but although displaying a more jazzy feel, it also suffered from the deep depressive attitudes that infused the earlier album. The more guitar oriented Hail to the Chief in 2003 represented in many ways a return to earlier form. Some critics were disappointed feeling that Radiohead had not evolved creatively with this new record. The band didn’t care. At the height of their fame, they launched a world tour headlining at Glastonbury and counting down the time to the end of their contract with EMI.

Finally free of the recording contract shackles in 2005, they began work on a new album. In an interview with Wired, Thom Yorke claimed EMI allowed no clauses for digital music rights as their contract was struck years before digital music stores were available. When In Rainbows was finally released in October 2006 it was the first real opportunity the group had to earn money on a digital offering. Yorke said the flexible price was manager Chris Hufford’s idea. “We all thought he was barmy. As we were putting up the site, we were still saying, "Are you sure about this?" But it was really good,” said Yorke “It released us from something. It wasn't nihilistic, implying that the music's not worth anything at all. It was the total opposite. And people took it as it was meant. Maybe that's just people having a little faith in what we're doing.”

China slips over TRIPS

This week the US filed a complaint with the World Trade Organization (WTO) against China over widespread piracy of copyrighted DVDs and CDs. It is the first time a copyright piracy complaint against China has been filed with the WTO. Japan and the EU have joined in the action in a crackdown against China’s lax regulations on DVD and CD piracy. The US is invoking the WTO's agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) which stipulates that member countries are obliged to impose criminal charges against producers and dealers of counterfeit goods.

TRIPS has been around since 1994. It was one of the lesser known clauses of the GATT agreement which embodied the Uruguay Round of multi-lateral trade negotiations. TRIPS had profound consequences on the global flow of information but was rarely discussed while impact on agricultural subsidies hogged the limelight.

The TRIPS agreement requires signatory countries to properties information for the first time. These included plant variety protection which has proved a controversial item for developing countries. TRIPS also increases the duration of protection for intellectual property (IP) rights which in turn raises the price of information. Finally it requires states to enforce these rights; as China is now finding out to its cost.

Prior to 1994, property rights were the domain of an international organisation called World Intellectual Property Organisation (WIPO). Its replacement, TRIPS, was almost entirely the work of one nation; the US. Many US multi-national companies such as IBM and Microsoft had large IP portfolios whose profits were being eroded by piracy. These companies brought their message to Congress. Their lobbyists told the politicians stronger property rights were needed to protect American industries and ideas.

In the 1980s, most developing nations were not sympathetic to IP issues. Many countries saw IP as a form of re-colonisation or economic imperialism. The US quickly realised it would need to tie IP rights in with trade if they were to get the rest of the world to treat it seriously. They knew that banning Brazilian software would have little effect – but if they banned Brazilian coffee, that was a different story.

The Americans set up what was called the Advisory Committee for Trade Negotiation (ACTN). ACTN was the conduit between business and the Government on trade policy. ACTN was chaired by Ed Pratt CEO of Pfizer, a company which was directly threatened by illegal copying of its products. ACTN established a task force on IP which recommended the US develop a holistic IP strategy. That strategy required the US have a goal of placing IP into the GATT.

The strategy had a carrot and stick approach. The carrot was to spread the message in developing countries of the benefit of IP. The stick was to make favourable trading status with the US dependent on IP protection. The IMF and the World Bank were also instructed to tie aid programs to IP. The ACTN built relationships with like-minded groups in Europe and Japan to spread their message.

The US changed its own trade laws in 1974 to demonstrate its seriousness. These laws contain what is called “Special 301 process”. The Special 301 process defines priority foreign countries, the watch list and the priority watch list. Countries on the watch list are being told that its IP practices are unsatisfactory and the US is watching. Serious offenders can be moved to the priority watch list. Examples on this list include Saudi Arabia which was so defined because it had not signed the Berne Convention on copyright, had an ill-defined copyright act and had little or no enforcement.

The Special 301 process is supported by surveillance. This is done by US companies through their overseas agencies. These companies are members of the International Intellectual Property Alliance (IIPA) and they provide the IIPA with copyright issues across the world. The IIPA then recommend action to the US Government. As well as targeting rogue states, the IIPA also target pirates by passing on relevant information to state enforcement agencies.

The IIPA kept up the pressure on Washington by providing reports which showed how much money its members were losing each year due to IP infringements. It also raised public awareness with an advertising campaign which including whistle-blower hotlines, well publicised criminal prosecutions and seminars on copyright issues.

Despite all their progress in the US, there was little support for the inclusion of IP in GATT in other nations. It simply wasn’t a priority. A new committee of US business heavyweights was set up called the Intellectual Property Committee (IPC). Their job was to form an international consensus in the business community. They produced a 1985 paper which provided a possible model for an IP code within GATT and discussed the issues it needed to overcome.

Their pressure was brought to bear in 1986 when GATT agreed to include an agenda item to discuss rules of IP protection. This discussion was dominated by the US. It was the only country in the discussion with negotiators trained in IP. Its own trade people became familiar with the subject matter which assisted in the bargaining. No other country had thought about the issue to the same extent and few had any goals on the subject.

But while the rest of the world had misgivings, there was too much at stake to sacrifice it all on IP. A few countries resisted, but they were marginalised by the Special 301 Process. By agreeing to TRIPS, some countries could negotiate their way off the US Watch Lists. But the main reason it passed was there was a lot on the agenda. A loss on IP could be turned into a concession that was a win on other matters. IP rights were entrenched in the Uruguay Round.

In the end, it was US technical expertise that got them over the line. India and Brazil formulated counter-proposals but neither had the knowledge to counter the US’s complex objections. Few countries could match the quality of US legal thinking on copyright and its expertise in IP law. Once victory was assured, adherence to IP law became a condition of entry to WTO and US bilateral trade agreements. TRIPS is now a key ingredient to continued US hegemony. Patent rights to DNA and control rights over software are abstract rights that delivers power to its owners over the propagation of those objects. These will increasingly become the capital of the 21st century.

roger, copy

Copyright protects property. Media practitioners encounter copyright every day either by using other people’s published work or when others want to publish their works. It is an area of law subject to rapid change. Constant improvements in technology and the growing impact of international legislation have left the law of the land struggling to keep up. This essay will discuss the impact of intellectual property laws, the level of creativity required to qualify for copyright, and the impact to journalists using copyright material. The essay will conclude with a brief discussion of amendments to Australian copyright law in 2000.

Copyright is a form of personal property. Intellectual property (IP) is an important subset of copyright. It describes a range of legal rights in relation to information that results from some form of human intellectual activity. Australia is a founder member of the world IP governing body, the World Intellectual Property Organisation (WIPO) established by the Stockholm Convention of 1967. The democratic nature of WIPO meant that the US with its one vote could always expect to be defeated on any reform move by developing countries. This frustrated large US companies keen to protect their IP portfolios from piracy. They created a lobby group called the Advisory Committee for Trade Negotiations (ACTN) to provide input into US trade policy. The US succeeded in putting IP on the agenda of the GATT Uruguay Round in 1994. The resulting agreement is called the trade-related aspects of intellectual property rights (TRIPS). TRIPS is now is a global enforcement of IP rights that includes software algorithms, genetic information and chemical compounds.

In Australia, copyright law is embodied at a federal level in the Copyright Act 1968 (Pearson 2004, p.282). The law does not address what degree of creativity is required for a work to gain copyright as an original. That question was considered by the US Supreme Court in Feist Publications Inc v Rural Telephone Service (1991). The landmark ruling of Feist was that in addition to being of independent origin, a work must be sufficiently creative to merit copyright. A telephone directory failed the second test. Databases may also fail this originality criterion and may lack copyright protection.

This test impacts journalists whose work may be stored in electronic databases and online newspapers. Journalists have long relied on the freedom of ideas to do their work. In De Garis v Neville Jeffress Pidler, the court ruled that employed journalists retain the right to distribute photocopies their articles not newspaper proprietors. Proprietors retain the right to reproduce articles in other media such as electronic databases or the internet. The 1993 Report on Journalists’ Copyright recommended the abolition of the special rule applying to print journalists. Reporters should seek the permission of copyright holders when reporting or else work within the defence of fair dealing. But The Panel case (2000) held that fair dealing defence failed if the object is sheer entertainment value rather than reporting of news for criticism or review.

There were two important amendments to Australian copyright law in 2000. The Copyright Amendment Act (Digital Agenda) was introduced to address copyright law deficiencies related to the internet. The main thrust of the law is to provide a right of communication to the public that is not limited to specific technologies (ibid, p.2). In the same year, the Copyright Amendment (Moral Rights) Act also provided two new “moral rights” for individual creators. The Australian Copyright Council defined moral rights in copyright law to mean right’s relating to a creator’s reputations in connection with his or her work. The two new rights are the right of attribution of authorship and the right of integrity of authorship. Creators can take legal action if they are not attributed or their work is falsely attributed or treated in a derogatory way. Unlike economic rights, moral rights are not transferable and last only for the lifetime of the creator.