Category Archives: copyright

QUT free public lectures in May

Professor Julie Cohen – Copyright and Creativity

In March, I posted notice of a free public lecture by Professor Julie Cohen of Georgetown University and Visiting Professor at Harvard Law School 2009. Professor Cohen will be speaking on Copyright and Creativity. The lecture will be held on Monday 25 May 2009 from 5:00pm-6:30pm in the Gibson Room (Room Z1064), Level 10, Z Block of QUT’s Gardenspoint Campus. See my earlier post for more details. RSVPs were offficially required by 30 April 2009, but late RSVPs will be accepted if you are interested in attending.

Professor Lawrence Lessig – Change Congress and Regulatory Transparency: CHANGE v2: What changes will Obama need?

On Friday 29 May 2009, Professor Lawrence Lessig will give a free public lecture in the Banco Court, Law Courts Complex, 304 George Street, Brisbane. The lecture will be chaired by Justice Douglas of the Supreme Court of Queensland.

Lawrence Lessig is a Professor of Law at Stanford Law School and founder of the School’s Center for Internet and Society. Prior to joining the Stanford faculty, he was the Berkman Professor of Law at Harvard Law School and a Professor at the University of Chicago. He clerked for Judge Richard Posner on the 7th Circuit Court of Appeals and Justice Antonin Scalia on the United States Supreme Court. Professor Lessig’s career has focused on law and technology, especially as it affects copyright. He was one of the founding members of Creative Commons. Professor Lessig teaches and writes in the areas of constitutional law, contracts, and the law of cyberspace.

In this public lecture, Professor Lessig will talk about the project he (and others) launched in 2008 called Change Congress. Its purpose is to persuade members of congress to rely for funding on citizens’ contributions rather than big donations from special interests. The organisation considers that funding by corporate special interests has caused members of congress to favour these interests, undermining the integrity of the legislative process and resulting in legislation that may harm the public interest. Change Congress V1 proposed a multi-tiered program to achieve reform. It planned to enlist the support of house representatives, encourage citizen contribution pledges, garner suppoer for sympathetic politicians, and track the relationship between representatives and lobbyists. V2, announced on 9 January 2009, has simplified this program by encouraging private donors to pledge to withhold donations from congress members who won’t opt-in to the Change Congress system. V2 aims to abolish the culture of big private donations and free legislators from the grip of special interests. The aims of Change Congress are consistent with Barack Obama’s goal to achieve a transparent political culture that restores public trust. Its success may be critical to Obama’s hopes for enlisting congressional support for ambitious reforms to solve domestic and political crisis.

The free public lecture will be held on Friday 29 May 2009, in the Banco Court, Brisbane. There will be refreshments from 5:30pm, with the lecture commencing at 6pm and concluding at 7pm. Please register by 22 May 2009 to qutlawpubliclectures@qut.edu.au. Registered attendees may claim 1 CPD point for the Qld Bar Association and Qld Law Society. The program is available here [PDF].

High Court delivers judgement in the IceTV case

Today, Wednesday 22 April 2009, the High Court of Australia handed down their judgment in the IceTV Pty Limited v Nine Network Australia Pty Limited case [available here]. The Court allowed the appeal with costs.

The appeal to the High Court arose from proceedings brought by the Nine Network in the Federal Court of Australia for infringement of copyright in their Weekly Schedule of television programmes to be broadcast each week. They alleged that each Weekly Schedule was a compilation, and therefore a literary work under the Copyright Act 1968, and that IceTV had infringed copyright by taking part of the time and title information from the Aggregated Guides (guides produced by third party Aggregators, authorised by Nine and to whom Nine provides the Weekly Schedule) and including it in their own (electronic) guide, the “IceGuide”. Nine alleged that this constituted a reproduction of a substantial part of the copyright work. IceTV denied that they had reproduced in a material form a substantial part of any Weekly Schedule and denied that reproduction from any Aggregated Guide was a reproduction of any Weekly Schedule.

French CJ, Crennan and Kiefel JJ summarised the approach of the lower courts as follows (at pp 2-3):

Accordingly, both the primary judge (Bennett J) and the Full Court (Black CJ, Lindgren and Sackville JJ) dealt with this matter on the basis that the subsistence of copyright in the Weekly Schedules was admitted. The dispute was treated below as one to be resolved, first, by a determination of whether the time and title information which was reproduced constitutes a “substantial part” of the Weekly Schedules, and secondly, by consideration of the “indirect reproduction” issue. Both the primary judge and the Full Court essentially approached the question of whether IceTV had reproduced a substantial part of any Weekly Schedule by identifying the “skill and labour” which was expended on creating the Weekly Schedules, then asking whether IceTV has “appropriated” Nine’s skill and labour. The primary judge and the Full Court reached opposite conclusions on the point essentially because of different approaches to identifying the relevant skill and labour in question: the primary judge considered that skill and labour in making programming decisions was not relevant and that there was not a reproduction of a substantial part; the Full Court considered that this skill and labour was relevant and that there was a reproduction of a substantial part.

If the High Court had dismissed the appeal and affirmed the Full Court’s decision, the practical result, in my view, would have been stifling for new players entering this market. It would have essentially given the Nine Network complete control over any schedules or guides setting out what programmes would be screening on Channel Nine and when, and would have preventing anyone from producing such schedules or guides without first obtaining permission from the Nine Network and most likely paying a licensing fee. This is notwithstanding that the Nine Network’s primary function is broadcasting, not scheduling.

French CJ, Crennan and Kiefel JJ gave a joint judgment. They considered that the Weekly Schedules contain both “information” (the time and title information) and “creative” material (such as the synopses of programmes). In relation to the expression of time and title information, they considered that this is not a form of expression that requires particular mental effort or exertion and that the way in which the information can be conveyed is very limited (at p16). They stated at pp 16-17:

The authors of the Weekly Schedule (or the Nine Database) had little, if any, choice in the particular form of expression adopted, as that expression was essentially dictated by the nature of the information. The expression lacks the requisite originality (in the sense explained) for the part to constitute a substantial part.

Counsel for Nine sought to place importance upon the production not only of time and title information in respect of each programme, but also of the chronological arrangement of the time and title information for various programmes. Whether a selection or arrangement of elements constitutes a substantial part of a work depends on the degree of originality of that selection or arrangement. In this case, a chronological arrangement of times at which programmes will be broadcast is obvious and prosaic, and plainly lacks the requisite originality.

These considerations lead to the conclusion that the part of the Weekly Schedule (or the Nine Database) alleged to have been reproduced was not a substantial part.

This determination is, in my view, significant. Although the judges did not address the issue of whether Nine’s Weekly Schedule compilation ought to attract copyright protection in the first place (though see pp 17-18 for a brief reference), at least in so far as it only compiled facts or information in a logical way, they did hold that that protection would not extend to the use of mere facts from the compilation.

Since Desktop Marketing v Telstra, there has been significant uncertainty around a user’s ability to reproduce material contained in a copyrighted data compilation because the test for originality was so wide. This meant that a copyright holder could assert such control over a database that at times they appeared (and often purported) to be able to control use of what essentially amounted to mere facts and information in circumstances where copyright law should not extend. The above judicial statement, while not bringing us in line with the US decision of Feist v Rural Telephone Services in regards to whether copyright should subsist in a compilation that lacks creative input, at least takes a step in the right direction of tightening the originality threshold to provide that reproduction of the purely informational material within a compilation will not constitute a substantial part sufficient to give rise to an infringement claim.

French CJ, Crennan and Kiefel J also state at p20 (in obiter):

Rewarding skill and labour in respect of compilations without any real consideration of the productive effort directed to coming up with a particular form of expression of information can lead to error. The error is of a kind which might enable copyright law to be employed to achieve anti-competitive behaviour of a sort not contemplated by the balance struck in the Act between the rights of authors and then entitlements of the reading public.

Justices Gummow, Hayne and Heydon also delivered a joint judgment. In their judgment, they accepted the submission by IceTV that the originality of the Weekly Schedule “lay not in the provision of time and title information, but in the selection and presentation of that information together with additional programme information and synopses, to produce a composite whole” (p56). Accordingly, like French CJ and Crennan and Kiefel JJ, they found that IceTV had not reproduced a substantial part of Nine’s original copyright work.

Gummow Hayne and Heydon JJ stated (at pp 57-58):

The issue requiring the comparison between what was taken and the whole of the work in suit may be distorted by a mediation, inspired by Desktop Marketing, upon the protection given by the Act against misappropriation of any investment of skill and labour by the author. In the present case, the temptation then is to classify the slivers [of information] each as original literary works…

…The proposition that the Court should look to “the interest” which the copyright protects invites processes of reasoning to which there applies the warning by Judge Learned Hand in Nichols v Universal Pictures Corporation. This is to the effect that the more remote the level of abstraction of the “interest”, the greater the risk of protecting the “ideas” of the author rather than their fixed expression. That risk appears to have been realised in the reasoning of the Full Court.

The Full Court approached the issue of substantiality at too high a level of abstraction, and in doing so tipped the balance too far against the interest of viewers of digital free to air television in the dissemination by means of new technology of programme listings.

It is also interesting to read the Justices’ assessment (at pp 61-65) of just how IceTV compiled their IceGuide, using primarily “prediction” of time and title information and only relying on Nine’s schedules to confirm their predictions, but I won’t cover that in detail here.

Significantly in this case, all judges referred disfavourably to the statement made by Lord Reid in Ladbroke (Football) Ltd b William Hill (Football) Ltd that “what is worth copying is prima facie worth protecting”. Gummow, Hayne and Heydon JJ called this formula “deceptively simplistic” (p27). All judges referred to the need to balance the protectionist aspects of copyright law with the need to maintain a robust public domain. Furthermore, at p50, Gummow, Hayne and Heydon JJ discuss in obiter “a reason to treat the decision in Desktop Marketing with particular care…”

Yet the most important obiter remarks were made by Gummow, Hayne and Heydon JJ immediately following their conclusion (pp 65-66):

One final point should be made. This concerns the submission by the Digital Alliance that this Court consider the Full Court’s decision in Desktop Marketing and, to the contrary of Desktop Marketing, affirm that there must be some “creative spark” or exercise of “skill and judgment” before a work is sufficiently “original” for the subsistence of copyright.

It is by no means apparent that the law even before the 1911 act was to any different effect to that for which the Digital Alliance contents. It may be that the reasoning in Desktop Marketing with respect to compilations is out of line with the understanding of copyright law over many years. These reasons explain the need to treat with some caution the emphasis in Desktop Marketing upon “labour and expense” per se and upon misappropriation. However, in the light of the admission of Ice that the Weekly Schedule was an original literary work, this is not an appropriate occasion to take any further the subject of originality in copyright works.

While it is disappointing that the Court declined to consider in detail the issue put forward by the Digital Alliance, it is encouraging to see an indication that the Court no longer appears to view Desktop Marketing as the ultimate Australian authority on this matter and considers that it should be treated with caution.

Unlocking IP 2009 presentation – Professor Anne Fitzgerald and Kylie Pappalardo (QUT) – Moving Towards Open Standards

In the afternoon, Professor Anne Fitzgerald and I presented on the legal (copyright and patent) issues involved in standards development and use, and how we might move towards a more open system of standards from a legal perspective.

Our slide set is available in powerpoint or in PDF.

I believe that UNSW will be publishing conference papers, including ours, in the near future. I will keep you updated on the publication status of our paper.

Unlocking IP 2009 Presentation – Matthew Landauer, OpenAustralia.org

Probably one of the most interesting presentations from the day came from Matthew Lanauer from OpenAustralia.org. OpenAustralia.org is based on the UK site by mySociety: theyworkforyou.com. OpenAustralia.org is a non-partisan website run by a group of volunteers which aims to make it easy for people to keep tabs on their representatives in Parliament.

In his presentation, Matthew described the problems he has faced gaining copyright permission from the Australian Government to host material such as Senate debates on the website. The Australian Hansard information is Copyright Commonwealth of Australia. For this material and other information, Matthew had lodged repeated requests with the government for permission to use the material, and had not received any response. Ultimately, in relation to one set of material he received an email from someone in government claiming that the material in question was free to be used as it was considered to be in the public domain (a position contrary to the copyright statement on the material). In relation to another set of material, Matthew considered he might have an implied licence, because although the government never officially responded to his request for permission with a yay or a nay, they sent him the material he asked for after he had informed them what he intended to do with it. However, it relation to a great deal of the material on Open Australia.org, Matthew is still not entirely clear of Open Australia’s legal position.

It is a great disappointment that someone like Matthew should have to be in this situation of legal uncertainty. We have a government that claims to be committed to openness and which has commissioned such pivotal reviews as the Review of the National Innovation System (which recommended more openness in government, particularly from a copyright perspective) and yet he still have repeated copyright requests going unanswered. OpenAustralia.org is a really important project from a democratic point of view, and I really hope that the government steps up and proves much more helpful in the future.

Copyright protection and data compilations

Over on the Digital Curation Blog, Chris Rushbridge has an interesting post entitled, “Are research data facts and does it matter?”

I have just posted a response, which I am reproducing here:

I would like to take this opportunity to explain some of the research we have undertaken in the OAK Law Project and conclusions we have reached regarding copyright protection of data compilations in Australia. We have two primary publications addressing this area: Building the Infrastructure for Data Access and Reuse in Collaborative Research: An Analysis of the Legal Context and Practical Data Management: A Legal and Policy Guide.

s10(1) of the Australian Copyright Act 1968 defines a literary work to include a “compilation”. This is where protection for data compilations under Australian law derives from. Any data that is collected, arranged, organised and presented in a logical fashion will usually be regarded as a compilation.

Chris makes a good point that many data compilations will require a great deal of effort, analysis and creativity. In the US, creativity is a requirement before a data compilation can be protected by copyright. In Australia, creativity is not required. Only that the compilation is a result of the exercise of skill, knowledge or judgment in the arrangement of the data, or the investment of substantial labour or expense in collection the material (Desktop Marketing v Telstra).

It can often be difficult to tell whether a compilation is one that would attract copyright protection. In our work, we have tended to err on the side of caution and assume that most compilations will attract copyright protection. This is because the threshold in Australia is so low. The main case in this area, Desktop Marketing v Telstra, involved the copying of a telephone directory. A telephone directory is merely a compilation of names and numbers listed in alphabetical order. If this is a compilation that attracts copyright, then most other compilations are likely to be protected by copyright under Australian law as well.

Copyright law does not protect mere facts or information. Rather, it protects the expression of facts or information in a material form. This means that generally there would not be a problem with copying some of the basic facts contained in a compilation. For example, if I were to list the names and numbers of a small collection of my colleagues on my website, that would not usually be a problem. I have extracted the data that I need, in a fairly “random” fashion (in that I have not just copied a few pages of names and numbers in alphabetical order directly from the White Pages). I have not copied the way that the data is arranged in the telephone directory (the “expression”).

In regards to Science Commons’ decision to discontinue advocating the application of Creative Commons licences to data compilations, my understanding is that they came to this decision for two reasons:
(1) It was not always clear in the US whether the relevant compilation attracted copyright. If it did not but a person had put a CC licence on the compilation in the mistaken belief that it did, then restrictions would have been imposed on that dataset (e.g. that it could only be used non-commercially) which actually had no legal basis for being imposed; and
(2) CC licences all contain an attribution requirement and Science Commons were concerned about what they call “attribution stacking” – i.e. where a dataset is compiled from data contributed by many different researchers, it would be extremely difficult for a user to attribute all of those researchers.

At OAK Law, we still believe that CC licences can be applied to datasets in Australia because the concerns noted by Science Commons do not arise to the same degree in Australia. Firstly, we have a lower threshold test for copyright protection, meaning that copyright will more readily attach to datasets in Australia and the first problem noted by Science Commons is less likely to occur. Nevertheless, to be sure, we usually advocate that the widest CC licence – the attribution only licence – be applied to datasets. Secondly, unlike in the US, Australian copyright law includes Moral Rights, meaning that creators have to be attributed anyway, regardless of whether a CC licence is applied or not. We think there are various ways of getting around the “attribution stacking” problem – for example, a group of researchers could agree on a common way to be attributed (e.g. we could be attributed as “the OAK Law Project”), or the data could be attributed using a URL, which an interested party can visit and which can list all the contributors (and this list can be added to over time). The advantage of applying CC licences to data, in our view, is that it provides some certainty to users about what they can and cannot do with that data.

If you are interested in this issue, I would also advise reading these posts by Robin Rice and Rufus Pollock.

Free public lecture – Professor Julie Cohen on Copyright and Creativity

On Monday 25 May 2009, QUT will host Professor Julie Cohen, Professor of Law at Georgetown University and Visiting Professor at Harvard Law School 2009.

Professor Cohen is a distinguished intellectual property and privacy law scholar, with particular focus on copyright and on the intersection of copyright and privacy rights in the networked information society. She is a co-author of Copyright in a Global Information Economy (Aspen Law & Business, 2d ed. 2006), and is a member of the Advisory Boards of the Electronic Privacy Information Center and Public Knowledge. Professor Cohen received her A.B. from Harvard University and her J.D. from the Harvard Law School, where she was a Supervising Editor of the Harvard Law Review. She is a former law clerk to Judge Stephen Reinhardt of the United States Court of Appeals for the Ninth Circuit.

On Monday 25 May 2009 from 5:00pm-6:30pm, Professor Cohen will give a free public lecture on Copyright and Creativity. The lecture will be given in the Gibson Room (Room Z1064), Level 10, Z Block of QUT’s Gardenspoint Campus [map]. RSVPs are required by 30 April 2009 to Courtney or Collen via email at infocci@qut.edu.au or phone +61 7 3138 3556.

Ice TV

Yesterday, the High Court began hearing the Ice TV appeal. This is a case that could potentially have fairly wide ramifications for copyright protection of data compilations, or none, depending on whether the High Court rules in line with precedent (Desktop Marketing).

For links to commentary around the case so far, see Peter Black’s post here.

Ben Atkinson and Professor Brian Fitzgerald of the QUT Law Faculty yesterday posted a paper on QUT eprints, entitled, “Copyright as an Instrument of Information Flow and Dissemination: the case of ICE TV Pty Ltd v Nine Network Australia Pty Ltd“. You can read the paper here.

New article on the role of parody in Australian copyright law

Nic Suzor, PhD candidate at QUT, has a new article in the Media & Arts Law Review that is worth a look.

Citation is: Nicolas Suzor, ‘Where the bloody hell does parody fit in Australian copyright law?’ (2008) 13(2) MALR 218.

The title of the article refers to this spoof of the Australian Tourism’s ‘where the bloody hell are you?’ advertisement.

Here is the abstract:

This article examines the role of the recently introduced fair dealing exception for the purposes of parody and satire in Australian copyright law. Parody and satire, while central to Australian expression, pose a substantial challenge for copyright policy. The law is asked to strike a delicate balance between an author’s right to exploit their work, the interests of the public in stimulating free speech and critical discussion, the rights of artists who rely on existing material in creating their own expression, and the rights of all artists in their reputation and the integrity of their works. This article highlights the difficulty parodists and satirists have historically faced in Australia and examines the potential of the new fair dealing exceptions to relieve this difficulty. This article concludes that the new exceptions have the potential, if read broadly, not only to bridge the gap between humorous and non-humorous criticism, but also to allow for the use of copyright material to critique figures other than the copyright owner or author, extending to society generally. This article will argue that the new exceptions should be read broadly to further this important policy goal while also being limited in their application so as to prevent mere substitutable uses of copyright material. To achieve these twin goals, I suggest that the primary indication of fairness of an unlicensed parody should be whether or not it adds significant new expression so as not to be substitutable for the original work.

You can access the article here. It is available under a Creative Commons Attribution-ShareAlike (BY-SA) 2.5 Australian licence. See also Nic’s blog at www.nic.suzor.com