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The Digital Agenda Russell Allen Incorporating slides by Professor Graham Greenleaf August 2004 These slides may be used for private, non-commercial study.

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Presentation on theme: "The Digital Agenda Russell Allen Incorporating slides by Professor Graham Greenleaf August 2004 These slides may be used for private, non-commercial study."— Presentation transcript:

1 The Digital Agenda Russell Allen Incorporating slides by Professor Graham Greenleaf August 2004 These slides may be used for private, non-commercial study only.

2 Responding to the Digital World How should copyright change to cope with the new, digital, reality?

3 Traditional Views of Copyright Two traditional Western views of copyright European authors rights approach Inalienable link between creator and work, goes beyond economic rights; stresses natural rights not bargains Anglo-American economic rights Alienable rights, but nevertheless only justified by a bargain between the public good and a limited monopoly Financiers copyright (Drahos) Financier of © works must be guaranteed rights of exploitation in whatever media and technological environment he chooses to operate There are many other versions of this Max view

4 Changing Metaphors 1 Litman (Ch 5) identifies 3 stages in 20thC US metaphors for ©: (1) The author/public bargain (to 1970s) a limited monopoly - a bargain to encourage creativity (2) Incentive to authors for creation (from 70s) standard economic model of © as a system of incentives No bargain limitations; any increases in rights will increase incentive

5 Changing Metaphors 2 (3) Inherent right of authors to control uses of works Conversion of © into a trade issue convinced US lawmakers (Litman) - © was about Amercians protecting their property from foreigners stealing it Stronger US IP laws were primarily a good example for US trading partners [Also connects to inherent property rights arguments - popular and no inherent limits]

6 Other digital agendas Litman See Reading GuideReading Guide no non-commercial infringement Lessig See Lessig The Internet Under Siege (2001)The Internet Under Siege See Reading GuideReading Guide Limited terms, limited protections, fair use Drahos See Resisting the new inequality (Ch 13) Reformulating the public domain See Wk 5 on creating/proecting digital commons

7 The Digital Agenda (I) - International dimensions The current international consensus on changes to the IP regime

8 The digital agenda in international IP law / practice See: Drahos Information Feudalism 2002; McKeough & Stewart Ch 21; Griffiths paper Sources of international developments: US forum shifting away from UNESCO, UNCTAD and WIPO treaties US trade sanctions before / after TRIPS TRIPS Agreement 1994 WIPO Copyright Treaty 1996

9 The digital agenda pre-TRIPS US forum shifting the USs biggest success is in changing the forums deciding international IP (Drahos) Dissatisfaction with WIPO WIPOs failure to support standards desired by US eg proposing a special regime for software, not copyright - abandoned after US, Japan and Australia adopted copyright WIPOs deepest failure (Drahos) was in its failure to develop an international enforcement mechanism - Not one dispute ever before ICJ WIPO was forced to accept TRIPS and WTO

10 US forum shifting (2) Dissatisfaction with UNCTAD UN Conference on Trade and Development Dissatisfaction with UNESCO UN Educational, Scientific and Cultural Org Administered UCC, which US had always preferred to Berne US withdrew from UNESCO 1984

11 The digital agenda pre-TRIPS US trade law - bilateralism (see Drahos Ch 6) GSP (Generalised System of Preferences): beneficiary developing countries could import duty- free into US 1984 Trade and Tariff Act linked GSP to a countrys conduct on IP issues S301 Trade Act (1984) gave President power to sanction states failing to give adequate protection to US IP - allowed sanctions against countries no longer eligible for GSP (eg Taiwan, Korea) Special 301 (1988) - annual s301 listings at 3 levels of seriousness before trade sanctions

12 US trade law - bilateralism (2) US trade law and IP (cont) From , 11 s301 actions against 7 countries, but only 1 punitive tariff imposed more bark than bite but US skilful use of s301 achieved major IP changes bilaterally (Drahos) Most important is that US bilateralism … remains relentless post-TRIPS (Drahos) - WTO enforcement is just another weapon in obtaining bilateral aims … and its European equivalent 1984 EU equivalent of s301 & GSP - enforced against Indonesia, Thailand, Korea etc

13 TRIPS Agreement 1994 See two Griffith summaries in Reading Guide TRIPS = Trade Related Aspects of Intellectual Property Rights One of the system of agreements making up the World Trade Organisation (WTO), agreed in the Uruguay Round (1994), in force 1995 Pt II - standards for IP rights - reform agend Pt II - required enforcement measures Dispute resolution (A63-64) by WTO dispute settement procedures TRIPS Council - assists in dispute settlement etc

14 The digital agenda in TRIPS A9 - Relation to the Berne Convention - compliance with Berne Convention required (except for moral rights) A10 - Computer Programs and Compilations of Data - (1) protection of computer programs as literary works; (2) protection of 'compilations of data or other materials' (limited form of database protection). A11 - Rental Rights - limited required to provide rental rights in relation to computer programs and films (and, with exceptions, to sound recordings: A14(4))

15 The digital agenda in TRIPS (2) A12 - Term of Protection - generally, term of copyright must be at least 50 years from the authorised publicaton of a work or, if unpublished, 50 years from when made. A13 - Limitations and Exceptions - these must be confined to special cases which do not conflict with 'a normal exploitation of the work and do not unreasonably prejudice the legitimiate interests of the right holder'. A14 - Protection of Performers (etc) - requires performer's rights, reproduction right re sound recordings, various rights re broadcasts; and minimum term of protection for all of these.

16 WIPO © Treaty Expanding the digital agenda Early versions in US White Paper on © reform, 1995 New WIPO Treaty rights not in TRIPS: A8 - the right of communication to the public, and the right of 'making available' A11 - prevention of circumvention of technical protections A12 - protection of rights management information (RMI) Reproduction right was not re-defined Not yet in force: 30 ratifications needed

17 Further expansions Europe EU Copyright Directive beyond WIPO? Unfinished agendas on database protection Criminalisation of © enforcement Long arm US takedown notices What else does Max want? …

18 Digital Agenda (II) -Australian dimensions The domestic response to the international agenda

19 Implementation Australia is one of the few common law countries to implement the Digital Agenda reforms Copyright Amendment (Digital Agenda) Act 2000 (referred to in the following as the 'Digital Agenda Act') came into force on 4 March 2001 Copyright Amendment (Digital Agenda) Act 2000 It included some of the most significant changes to the Copyright Act 1968 for many years, particularly in relation to cyberspace issues (as its name implies).

20 Main Amendments new definition of computer program new definition of 'broadcast' to include cable transmissions refinements to the meaning of 'reproduction'; including temporary reproductions (caching), and conversion of programs; the new rights to communicate and to 'make available fair dealing exceptions to the new rights limitation of liability of carriers and carriage service providers (including ISPs) circumvention measures and RMI ('New enforcement provisions').

21 Convergence or Categorisation? Traditionally copyright based on categories Digital works often blur these boundaries This raises problems with outcomes

22 What is a Computer Game? A computer game embodies video, sound, music, images, text and is also software. What is it? Galaxy Electronics Pty Ltd v Sega Enterprises Ltd and Another 37 IPR 462 Kabushiki Kaisha Sony Computer Entertainment v Stevens [2003] FCAFC 157

23 What difference does this make? Differences in the rights comprising copyright- ie, what constitutes infringement Differences in ownership Differences in duration

24 Should categories be continued? n Option 1: Create new multimedia category n Option 2: Eliminate all categories n Option 3: Allow major categories to continue to eliminate minor categories (Literary Works and Cinematograph Films)

25 Software n A computer program is now a literary work s10(1) Copyright Act n computer program means a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result.

26 Fair Use for Software n ss48AB – 47H

27 Right of Communication to Public s31 Copyright Act – communicate the work to the public

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