Copyright

Keeping up with Copyright - the Christmas edition

Australian Digital Alliance/Australian Libraries Copyright Committee Information Bulletin

Christmas 2011

Keeping up with Copyright is a monthly information bulletin for ADA and ALCC members, to keep you updated of activities being undertaken by the copyright adviser for the two bodies. Read to the end for a Christmas copyright fix (this newsletter is a big one!)

Recent Activities

Save this date! ADA Copyright forum 2012, with keynote address by Pamela Samuelson

Preparations are under way for the next ADA copyright forum in 2012 and it's shaping up to be a big one! Reserve Friday 9 March 2012 in your calendar now, for a day of stimulating discussions on copyright exceptions for users and innovators at the National Library of Australia, Canberra.

The 2012 forum, Growing the Digital Economy: Copyright Exceptions for the Internet Age will serve as a "conversation starter" in the lead up to the anticipated copyright review by the Australian Law Reform Commission, with panel sessions to consider whether existing exceptions in the Copyright Act are adequate and appropriate in the digital environment.

We're thrilled to announce that internationally-renowned copyright academic Pamela Samuelson will be on hand to deliver a key note address. Recognised as a pioneer in digital copyright law, IP, cyber law and information policy, Samuelson has published extensively on topics including fair use, digitisation and the Google Books Settlement, IP rights for computer programs and data bases and other areas for reform in US IP law. From 2007 - 2010, Samuelson headed the Copyright Principles Project, looking at alternative copyright laws to address rapidly evolving digital technologies and their final report (in the link above) is a must read!

We're putting together an excellent line up of panel speakers too, with the first announcement including Nicholas Gruen (ADA Patron and CEO, Lateral Economics), Maryanne Diamond (President, World Blind Union), Carolyn Dalton (Policy Australia), Professor Anne Fitzgerald (QUT) and Anne Flahvin (Policy Australia, Baker & McKenzie) as well as a number of ADA Board members. More speakers to follow...

The ultimate Christmas present? Early bird registration for the 2012 ADA Copyright forum, of course! ADA members: 2 free attendees per organisation membership and free to individual members; Other: Early bird rate - until 20 February 2012 - $110 per attendee (including optional ADA individual membership); Post 20 February 2012 - $150 per attendee (including optional ADA individual membership)

ADA denied leave to appear as amicus curiae in iiNet High Court hearing
Unfortunately the High Court declined the ADA leave to make submissions as an amicus curiae in last week's High Court proceedings between AFACT and iiNet. If you weren't avidly following the daily updates from Court Room 1 in Canberra, shoot me an email and I'll forward them to you. Even though the ADA wasn't granted leave, preparing our written submission, talking with Counsel and appearing in the High Court was still a hugely valuable experience. Thanks must go to everyone involved: the ADA Board members and ALCC Committee members for their assistance and support; Counsel for the ADA, Ed Heerey, for his generous donation of time and expertise; Herbert Geer and Anne Flahvin, for guiding me through the maze that is the High Court Rules; and to all of you for your feedback and lovely comments.

In addition to the daily updates I published a blog post on Club Troppo, High Court to content industries: Why not lower your prices?, teasing out one of the basic issues underlying this particular authorisation case before the High Court - consumer choice, and the limit of an ISP's ability to encourage lawful downloading.

Submissions to government - expanding the scope of safe harbours, international instrument on copyright exceptions for the visually impaired, Cyber White Paper
The last two months have seen a succession of government discussion papers with implications for copyright law and policy. The ADA/ALCC submissions in response to the National Cultural Policy and Digital Culture Public Sphere were covered in the November newsletter, with three further submissions close behind. Take a look at the ADA and ALCC's joint submissions on the proposed international instrument on copyright exceptions and limitations for the visually impaired as well as the AG's consultation paper on Expanding the Scope of Copyright Safe Harbours on the ADA website. There's also a short and snappy comment on the Department of Prime Minister & Cabinet's Cyber White Paper - Public Discussion Paper, in anticipation of the release of the actual Cyber White Paper in 2012.

On the horizon - ALCC Libraries Copyright Training on the road again in 2012!

Copyright training for libraries kicks off again in 2012 after a 2011 hiatus. Training will focus on library exceptions under the Copyright Act, section 200AB and the variety of ways it can benefit libraries, and digital resource management. Libraries, now's the time to get in first with your preferred dates for training, with the first session hopefully underway by the end of January 2012.

On the horizon - revamped ADA and ALCC websites

It's been a long time coming but we're nearly there! Oxide Interactive are putting together the wire frames for the new ADA website now with a mid-January go-live date, and the refresh of the ALCC site will follow. The new ADA website is looking great. It's going to be a lot easier to navigate, with a more succinct cataloguing of copyright policy submissions and legal developments, an ADA blog and improved membership information. Accessibility is a priority, and all submissions

News highlights

A quick recap of key stories from November with a little Christmas cheer

Five copyright cases in two days before the Supreme Court of Canada

In the last two days the Supreme Court of Canada has heard a whopping FIVE copyright cases. Parties in the cases include Canadian collecting societies Access Copyright and SOCAN, the Canadian Recording Industry Association, Apple, Bell Canada and the Entertainment Software Association of Canada (ESAC).

Howard Knopf and Michael Geist have been running excellent commentary on the cases. The scope of fair dealing under Canadian copyright law will be tested after the Supreme Court of Canada held in 2004 that fair dealing is a "user's right" to be interpreted in a broad and liberal fashion. In two of the cases currently before the SC, collecting societies are seeking payment for uses they maintain do not fall within fair dealing: copying of materials in schools for classroom use, and music previews on iTunes (considered by Apple to be consumer research). Another case asks whether businesses are paying too much for use of copyright material, with layering of rights forcing businesses to pay multiple times for the use of a single work.

Close of 23rd session of WIPO Standing Committee on Copyright and Related Rights

The ADA and ALCC have been keenly following discussions at the 23rd meeting of the SCCR in Geneva, after submitting comments for the Australian representative attending the meeting on both the proposed instrument on copyright exceptions and limitations for libraries, and an instrument for the visually impaired.

Described as a "marathon" two-week session, discussions regarding updated exceptions for libraries and archives ended on a positive note with member States agreeing to pursue a list of topics to go into a working document, with written comments due at the end of February 2012. Progress on an international instrument for the visually impaired was not so great, with previous accord on the draft treaty text from the June SCCR meeting undone by comments and changes demanded at the November session. Extensive debate about document formatting, font size and titles meant time was taken from discussion of more substantial aspects of the treaty. One proposed amendment of great concern to advocates for the visually impaired included the EU's proposal that rights holder approval be sought before making an alternate format work (!). Some delegations felt that the November discussions went backwards, with an instrument on copyright exceptions for the visually impaired now further away.

SOPA debate still raging, TPPA negotiations coming to Australia and Sweden sees up side to downloading

The outcry over the US House Judiciary Committee's proposed Stop Online Piracy Act has gone international, as countries start to come to terms with the unprecedented reach SOPA proposes to grant the US to police copyright infringement in other jurisdictions. The EU has adopted a resolution against SOPA, Michael Geist has analysed the bill's censorship provisions and their reach into websites in Canada and 20 Caribbean nations, and on the US front Tumblr's anti SOPA message on their website resulted in an enormous 87, 834 calls to US representatives regarding consumer concerns with the legislation. Last week, movie industry representatives stated their intention to come forward with language to address "some of the legitimate concerns" of companies opposed to SOPA, but it remains to be seen how the legislation, even in an amended form, will progress through Congress.

In other news, Trans-Pacific Partnership Agreement (TPPA) negotiations are headed to Australia next year, and are likely to be held from 1 - 9 March in Melbourne. Like the Anti-Counterfeiting Trade Agreement negotiations, TPPA rounds have been shrouded in secrecy, with limited opportunities for consultation on proposed IP provisions with stakeholders. ADA Board Director Kimberlee Weatherall published an analysis of the leaked US copyright enforcement provisions up for negotiation in the TPPA in February this year, highlighting significant flaws in the proposed text. An announcement from DFAT with further details of the Melbourne round of negotiations is expected in the next week.

On a lighter note, in welcome contrast to SOPA and the TPPA, the Swedish government has held that unauthorised downloading by consumers will stay legal. Based on a study conducted by the Danish government, the Swedes concluded that while around one in three citizens downloaded unauthorised movies, music and games, the money they reserved for entertainment remained constant; in effect, downloading was "complementary" to entertainment purchases. You can always trust Sweden to develop refreshing public policy!

The copyright Grinch who stole Christmas

(Title courtesy of ADA Board Director Matt Rimmer)

Phew! It's been a long newsletter but we're almost there, and what better way to close the 2011 ADA newsletters than with a little Christmas copyright trivia.
When people come carolling at your door, ask them if their carols are in the public domain. While Charles Dickens might not be too happy about it, Christmas favourites like A Christmas Carol and Livingston's 'Twas the Night Before Christmas are available for remix and reuse - the Night Before a Copyright Christmas being one superb example! If you're planning on a "How the Grinch Stole Christmas" display you better think twice, Dr. Seuss's estate will know who's naughty and nice and that "Jingle Bell Festival" could cause you problems too. Be careful what you attach your Christmas ribbons to! You could be interfering with an artist's moral rights, as the Toronto Eaton Centre found out when they put red bows on sculptor Michael Snow's installation of geese in flight. Sometimes even famous creators get copyright coal in their stockings: seminal filmmaker John Waters was sprung for allegedly infringing copyright in his recording of the song "Santa Claus is a Black Man" (listen to the original by Theodore Vann here!). And if you're in London for Christmas, check out Duckie's "Copyright Christmas", running from 10 - 31 December 2011...and then tell me what the bells (or Dickens) their promotional video is saying about copyright!

Follow the ADA on Twitter! Ellen tweets daily updates on copyright law developments at ADA_ellenbroad and all she wants for Christmas is three more followers to reach 100. (Copies of Jason Mazzone's Copyfraud and Rebecca Giblin's Code Wars also welcome stocking stuffers)