eNews on Copyright

Issue 25 - July 2002

Welcome to the copyright newsletter of the Copyright Law Branch of the Attorney-General's Department, currently edited by Elena Down, Senior Legal Officer in the Branch.

The last edition of e-News caused difficulties for some readers with older equipment unable to handle HTML. We would like to ensure that the newsletter is accessible for all readers. Please let us know if you have any comments or you would like the newsletter sent to you in an alternative format.

Copies of this newsletter and previous issues are available on the e-News on Copyright Web site. You may (and please do) forward this newsletter to friends and colleagues.

WHAT'S IN THIS ISSUE?

  1. Government's Review of Digital Agenda Amendments
  2. HREOC Forum on Accessibility
  3. Legislative Bills Update
  4. Meeting of the Working Group for Legal Experts on the Protection of Traditional Knowledge and Expressions of Culture, Noumea
  5. WIPO IGC on Genetic Resources, TK and Folklore
  6. WIPO SCCR 7th Session
  7. Cases: Full Federal Court decisions in Desktop v Telstra; Channel 9 v Channel 10.

Go to the end of the e-News for answers to the following questions:

1. Government's Review of Digital Agenda Amendments

The Copyright Amendment (Digital Agenda) Act 2000 commenced on 4 March 2001. The amendments were designed to update Australia's copyright regime in response to rapid technological developments in communications technology, particularly the Internet.

During the passage of the Digital Agenda Act, the Government said that it proposed to review the amendments within three years of their commencement to ensure that an appropriate balance was maintained between the rights of copyright owners and users. This commitment was also reflected in the Government's election policy statement Arts for All.

The Government's proposal for a three year review was made in recognition that the amendments placed Australia among leaders in digital copyright reform, and there were few existing legislative responses and established business models against which to measure the efficacy of the legislation. It was also made in recognition of the challenges posed to copyright law as new technologies continue to rapidly evolve.

As part of the broader review, the Government is in the process of selecting a consultant or consultants to undertake research and analysis (including economic analysis) on the impact of specific areas of the reforms. A request for expressions of interest from potential consultants was advertised nationally in May 2002 with the closing date for responses on 31 May 2002.

The Government's three year review will include consultation with copyright and other interests on the operation of the amendments to ensure that the policy objectives underpinning the reforms have been achieved. The Government will advise of further details of this process and is continuing to monitor the operation of the reforms.

2. HREOC Forum on Accessibility

The Human Rights and Equal Opportunity Commission (HREOC) hosted a national forum at the University of Technology, Sydney on 29 May 2002 on the availability of tertiary study materials for students who are blind or vision-impaired, or who have another print disability. A pre-forum session on issues relating to copyright and publishing was held on the afternoon of 28 May 2002.

Key copyright issues discussed at the forum included the operation of the statutory licence under Part VB of the Copyright Act 1968 for the copying and communication of copyright material by institutions assisting persons with a print disability, the library and archives exceptions, and the fair dealing exceptions. Other issues discussed included the financial implications for universities in providing material in accessible formats, resource implications for producers of material in accessible formats, and strategies for enhancing access to tertiary study materials for students who require these to be provided in alternative formats.

The different interests groups and individuals representing both copyright owners and users participated actively and cooperatively at the forum to develop solutions to the issues raised. A consolidated list of recommendations resulting from the forum is available from the HREOC website at http://www.humanrights.gov.au/disability_rights/education/forum02/forum_recs.htm

Simon Cordina, Principal Legal Officer in the Copyright Law Branch, presented a paper on "Digital Agenda and Copyright Issues" in the pre-forum session. A copy of his paper is available from the HREOC web site at http://www.humanrights.gov.au/disability_rights/education/forum02/papers.htm or by request (simon.cordinaATag.gov.au).

3. Legislative Bills Status

As reported in the last edition of e-News, the Parallel Importation Bill was introduced into the House of Representatives by the Attorney-General on 13 March 2002. The bill has not yet been debated.

REGIONAL AND INTERNATIONAL MEETINGS

4. Working Group for Legal Experts on the Protection of Traditional Knowledge and Expressions of Culture

The Working Group for Legal Experts on the Protection of Traditional Knowledge and Expressions of Culture (the Working Group) met in Noumea, New Caledonia from 26-28 June 2002. Lorraine Kershaw, Senior Legal Officer in the Copyright Law Branch attended as a member of the Australian delegation.

The Working Group was convened by the Secretariat of the Pacific Community (SPC), which is the premier regional technical and development organisation of the Pacific. The SPC is currently running a Legal Protection Project , in partnership with the Forum Secretariat and UNESCO, which is aimed at promoting legislation in the Pacific Islands for the protection of traditional knowledge and expressions of culture.

The objective of the Working Group was to progress its consideration of a draft model law for the protection of traditional knowledge and expressions of culture since its previous meeting in February 2001. Participating in the meeting were delegates from Fiji, New Caledonia, New Zealand, Palau, Papua New Guinea, Tonga, Vanuatu and Australia, as well as delegates from the SPC, the Pacific Islands Forum Secretariat and WIPO.

The outcome of the meeting was a Draft Model Law for the Protection of Traditional Knowledge and Expressions of Culture which establishes a new range of statutory rights for traditional owners of traditional knowledge and expressions of culture. The approach taken in the Draft Model Law is to protect the rights of traditional owners in their traditional knowledge and expressions of culture and permit tradition-based creativity and innovation, including commercialisation thereof, subject to prior informed consent and benefit-sharing. The Draft Model Law also reflects the policy that it should complement and not undermine intellectual property rights.

The Draft Model Law will be circulated to member countries of the SPC for their information and action as considered appropriate by individual countries. The purpose of the Model law is to provide a starting point for Pacific Island countries wishing to enact legislation for the protection of traditional knowledge and expressions of culture. As such, countries are free to adopt or adapt the Draft Model Law as they see fit in accordance with national needs, the wishes of their traditional communities and their legal drafting traditions.

5. WIPO IGC on Genetic Resources, TK and Folklore Gets Down to Business

The 3rd meeting of the WIPO Inter-Governmental Committee on Genetic Resources, Traditional Knowledge and Folklore was held in Geneva on 13-21 June 2002. Stephen Fox, Principal Legal Officer from the Copyright Law Branch, attended as part of the Australian delegation.

The meeting met to continue discussions in relation to intellectual property issues arising in the context of (i) access to genetic resources and benefit-sharing; (ii) protection of traditional knowledge, whether or not associated with those resources; and (iii) the protection of expressions of folklore. The meeting had before it a large volume of high quality papers prepared by the WIPO Secretariat, including the Final Report On National Experiences with the Legal Protection of Expressions of Folklore. That Report collated and reported responses to the questionnaires which had been sent to Member States arising from a resolution at the first meeting of the IGC. (The Report is available online at: http://www.wipo.org/eng/meetings/2002/igc/pdf/grtkfic3_10.pdf.).

The papers identified a considerable number of practical issues in both defining and scoping the coverage of the subject areas, as well as a range of possibilities for moving the consideration of them forward. (Papers are available online from the WIPO web site at: http://www.wipo.org/eng/meetings/2002/igc/index_3.htm.).

Most of the interventions made at the meeting reflected a positive response to the papers and indicated that they provided a very useful platform for further consideration of the issues. However, many participants felt that more time was needed to digest the content of the papers and, potentially, to consult on them. Some identified the need for greater technical assistance to indigenous communities and members to enable them to participate more effectively in the discussions. As such, the questionnaires were left open for further input, and the meeting agreed to the provision of further technical assistance by WIPO to Member States requesting it.

In relation to the issue of genetic resources, the meeting agreed to continue with the process of gathering information on existing contractual clauses concerned with the control and regulation of access to such material, and with the creation and maintenance of a database drawing together literature and other databases on this issue.

In respect of traditional knowledge, there was agreement to technical cooperation and the gathering of further data on the objectives and implementation of sui generis systems for traditional knowledge protection - the experiences of Panama, Peru and Portugal were of particular interest in this context.

In relation to folklore, Australia supported the collection of further data and the further provision of assistance to indigenous communities.

The WIPO papers noted both defensive and positive uses of traditional knowledge and traditional knowledge databases. A number of delegations supported this analysis while others continued to insist that the different purposes of the protection were irrelevant to the needs of and approaches used by indigenous communities.

Overall, the outcome of the meeting was positive - reflecting a greater maturity in the understanding of the issues, and also a greater willingness to acknowledge a diversity of possible approaches to address the issues of protection that had been raised.

The next WIPO IGC meeting is scheduled to be held in Geneva from 9-17 December 2002.

6. WIPO Standing Committee on Copyright and Related Rights (SCCRR) - 7th session

The WIPO Standing Committee on Copyright and Related Rights (SCCRR) met in Geneva on 13-17 May to consider further a proposed new treaty to update the rights of broadcasting organisations. Australia was represented by Mr Chris Creswell, Consultant to the Copyright Law Branch.

The SCCRR again had before it several treaty-language proposals by countries and by the EC, plus a background paper by the WIPO secretariat on the technical nature and dimensions of over-the-air, cable and Internet transmissions. Although it said at the last SCCRR meeting that it hoped to do so, the USA had still not reached a position or made a proposal on the treaty. There was further discussion at the meeting regarding just what should be protected as a 'broadcast'. There was general agreement on extending protection to original transmissions by cable services. There was no conclusion on whether the right of broadcasters over cable re-transmission should be exclusive or only a right to remuneration. Whether (and if so, to what extent) Internet activity also should be regarded as 'broadcasting' evoked a variety of comments and some confusion. The WIPO paper did not provide enough information to enable delegates to reach conclusions, and WIPO undertook to hold an information session on broadcasting and Internet streaming in conjunction with the next SCCRR meeting (4-8 November 2002). Broadcasters emphasised the need for control over unauthorised Internet streaming because, with its potential global reach, it could undermine territorial restrictions often placed on broadcasts for commercial reasons. The SCCRR also discussed interception by pirates of program-carrying signals in the course of transmission to a broadcaster, and unauthorised decoding of encrypted signals transmitted by, eg, pay-TV services.

Documents from the meeting (including the final report) are available on-line from the WIPO Web site at : http://www.wipo.org/news/en/index.html?wipo_content_frame=/news/en/conferences.html.

7. Cases of Note:

We reported in e-News No.23 of December 2001 that two cases were on appeal to the Full Court of the Federal Court of Australia. The Full Court's judgment in each case has now been handed down.

(a) Desktop Marketing Systems Pty Ltd v Telstra Corporation Ltd [2002] FCAFC 112

In a decision delivered on 15 May 2002, the Full Court of the Federal Court of Australia upheld Justice Finkelstein's earlier ruling that information databases such as telephone directories can be the subject of copyright protection.

Desktop Marketing Systems had copied data from the Telstra White Pages and Yellow Pages Telephone Directories without Telstra's permission. Desktop had used the data, and headings similar to those used by Telstra to organise the information, to develop CD-ROM software products that enable users to conduct different searches through the data.

The Full Court unanimously upheld Finkelstein J's decision, finding that 'to deny copyright protection would permit Desktop to appropriate the benefit of Telstra's substantial labour and expense in performing those activities' (Lindgren J at paragraph 170). Justice Lindgren was not persuaded by the contrary decision of the US Supreme Court in Feist Publications Inc v Rural Telephone Services 499 US 340 (1991) (paragraph 217). He examined English and Australian authorities in detail and found that '...the labour and expense of collecting, verifying, recording and assembling (albeit routinely) data to be compiled...' is capable of itself  '...establishing origination and therefore originality...', and may give rise to copyright protection (paragraph 160 at point 10).

The decision confirms the lower threshold of originality required for the protection of databases under Australian copyright law. Desktop Marketing Systems has sought leave to appeal to the High Court.

The Full Court's decision can be accessed at: http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/FCAFC/2002/112.html?query=%22desktop%22+and+%22v%22+and+%22telstra%22

The findings of Finkelstein J in the first instance are available on line at http://www.austlii.edu.au/au/cases/cth/federal_ct/2001/612.html. For a brief summary of the findings in that judgment refer to Issue 21 of e-News (June 2001).

(b) TCN Channel Nine Pty Ltd v Network Ten Pty Limited [2002] FCAFC 146 ('the Panel case')

By decision dated 22 May 2002, the Full Court of the Federal Court, comprising Sundberg, Finkelstein and Hely JJ, partly upheld an appeal from the decision of Conti J, TCN Channel Nine Pty Ltd & Ors v Network Ten Pty Ltd [2001] FCA 108) (Conti J's decision was reported in e-News issue No. 23, December 2001).

The Full Court decided that (1) "television broadcast" in which copyright subsists under the Copyright Act could be as few as 2 frames or even a single frame of material transmitted; (2) accordingly, a rebroadcast - however brief - of a broadcast will infringe the copyright in the original broadcast, unless one of the defences is made out; (3) there was no issue of whether the excerpts rebroadcast were substantial parts of the original broadcast - that issue could arise if the images but not the sound of a broadcast were rebroadcast or if, in a rebroadcast, the images were cropped; (4) the broadcast of a videotape of an earlier broadcast will constitute "rebroadcasting" of that earlier broadcast; (5) the purpose s of criticism or review and reporting news, for which a fair dealing is a defence, are to be judged objectively.

The court discussed the application of the defences of fair dealing for criticism and review and reporting news to uses, in Channel 10's program, "The Panel", of excerpts from several programs originally broadcast on Channel 9. The court also discussed the role of an appeal court in reviewing the trial judge's conclusions.

Leave has been sought from the High Court to appeal against the decision.

The Full Court of the Federal Court's decision is available on line at: http://www.austlii.edu.au/au/cases/cth/FCAFC/2002/146.html

The earlier decisions of Conti J are available on line at:

http://www.austlii.edu.au/au/cases/cth/federal_ct/2001/108.html

http://www.austlii.edu.au/au/cases/cth/federal_ct/2001/841.html.

WHO DO I CONTACT IN THE COPYRIGHT LAW BRANCH?

A. INTERNATIONAL AND PROJECTS, INCLUDING:

Contact: Mr Chris Creswell, tel: (02) 6250 6318; e-mail: chris.creswellATag.gov.au

B. TRADE AND REGIONAL ISSUES, INCLUDING:

Contact: Stephen Fox, tel: (02) 6250 6313; e-mail: stephen.foxATag.gov.au

C. NEW TECHNOLOGIES ISSUES AND PROJECTS, INCLUDING:

Contact: Simon Cordina, tel (02) 6250 6608; e-mail: simon.cordinaATag.gov.au

D. COPYRIGHT LAW REVIEW COMMITTEE SECRETARIAT:

Contact: Fiona Phillips, tel (02) 6250 6658; e-mail: fiona.phillipsATag.gov.au

E. OTHER ISSUES:

If you wish to contact the Copyright Law Branch on another matter, please contact our Branch Head, Joan Sheedy, (tel: (02) 6250 6313; fax: (02) 6250 5929; e-mail: joan.sheedyATag.gov.au

Peter Arnaudo (tel: (02) 6277 7300) is the current acting adviser responsible for copyright matters in the office of the Attorney-General, Mr Daryl Williams AM QC MP.

For administrative matters, please contact: Michelle Tippett (tel: (02) 6250 6655; Fax: (02) 6250 5929 e-mail: michelle.tippettATag.gov.au).

WHERE CAN I GET MORE INFORMATION ABOUT COPYRIGHT?

The Copyright Law Branch website is available here.

The Copyright Law Branch produces a booklet entitled Copyright Law in Australia: A Short Guide. It has recently published an updated version of this guide to reflect recent legislative amendments.

To obtain copies please phone (02) 6250 6655. The updated version is available on-line here.

Past publications including discussion papers and fact sheets on a variety of issues, are also available on line here.

The Copyright Branch does not give legal advice to members of the public. The Copyright Law Branch can provide Commonwealth Government departments and agencies with legal advice on copyright law matters.

Individual creators with a specific copyright inquiry may be able to obtain advice from the Australian Copyright Council tel: 02 9318 1788. See also the Copyright Council website at http://www.copyright.org.au.

For information on patents, trade marks and designs contact IP Australia on
tel: 1300 651 010 or access information on-line at http://www.ipaustralia.gov.au.

We would also like to hear from you if you have any feedback or comments on this newsletter. Send an e-mail to: ip_branch@ag.gov.au.