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THE ELECTRONIC ERA AND THE CONTROL OF IDEAS
Jennifer Farrell*
In the analogue era, control of the expression of ideas was limited – a monopoly provided to
encourage creativity. In the electronic era, the exponential growth in the values of ideas is pushing
governments and industry to achieve control over the ideas themselves – in perpetuity. The value of
‘knowledge capital’ has been driving the economies of countries such as the United States, UK and
Australia with international consequences through global treaties. Legislation and the development of
technological protection measures in these countries demonstrate the attempt to extend control of ideas
well beyond past boundaries.
Litigation in the UK associated with the publication of the Da Vinci Code and in Australia the challenge to
IceTV’s electronic program guide indicate some of the current control issues in
copyright law. The Eldred affair, the twenty-year campaign by Stephen James Joyce
to control the publication and use of his grandfather’s work, manipulation of patents
and The Recording Industry Association of America’s campaign of deterrence on
college campuses in the US further illustrate how control of ideas has been
extended. Facebook (www.facebook.com), one of the most popular social
networking sites on the Internet, provides valuable insights into the complexities
associated with the control of ideas in the electronic era.
The rapid pace of technological change has led to an overreaction by governments
and organizations and the introduction of control measures, which are stifling
creativity. Insufficient adherence to ethical guidelines will threaten an inclusive
‘knowledge society’ of the future.
THE ELECTRONIC ERA AND THE CONTROL OF IDEAS
INTRODUCTION
Intellectual Property law has been challenged by the electronic era and the internet.
Technological change and globalisation have had a profound impact on the
ownership of intellectual property (IP). Those most threatened by the technological
change and globalisation have used their power to change the law. ‘Knowledge
capital’ has been recognised as extremely valuable.
“In today’s global economy, knowledge capital, more than physical capital,
will drive the success of the UK economy. Against this backdrop, IP rights,
which protect the value of creative ideas, are more vital than ever.”
Digital technology and the internet have reduced the costs of copying and distribution
dramatically. The Gowers Review of Intellectual Property (“the Gowers Report”)
published in December 2006 reviewed the UK’s Intellectual Property (IP) framework.
The report argued that the economy of the UK is increasingly being driven by
“knowledge-based industries, innovation and creativity. This review was conducted
as a consequence of the global changes affecting IP. The report examined the
economic impact of changes such as the length of the copyright term on sound
recordings and the problem of “orphan works”1.
The increasing economic importance of IP was assessed by reference to the value of
firms, particularly the increase in the combined market value of the top ten firms
listed on the London Stock Exchange from £40 billion in 1984 to £80 billion in 2004.
The difference in value attributable to intangible assets, particularly knowledge
capital.2 The revenue from IP licensing was also considered an indicator of its
increase in economic importance. It was reported that IBM generates between $1.5
- $2 billion in revenue per annum by licensing IP and the BBC spent $100 billion in
2000 on the acquisition of IP rights.3
The Gowers Review recognised that Intellectual Property has never been more
important in protecting and promoting innovation. The reforms recommended
strengthening enforcement measures to protect IP in the UK from piracy and
counterfeiting but also it cautioned that the right balance should be found between
encouraging innovation and investment in new ideas and ensuring there is no
impediment to future innovation.
This paper suggests that the IP world is out of balance with IP rights being controlled
at the expense of innovation. The validity for the increased control has been based
on an analogy between intangible and real property rights. This has come at a time
when the freedom to control real property is being questioned in an international
context and global warming seen as a direct consequence of misuse of property.
The current misuse of IP rights is demanding a critical reassessment of the
consequence of control and its impact in a global context.
GLOBAL REGULATION
The restrictive copyright laws of the US have been extended by Free Trade
Agreements. Negotiation for the Australian-United States Free Trade Agreement
(AUSFTA) were completed in February 2004 and the agreement entered into force
on 1 January 2005. Domestic enabling legislation implemented the changes. In the
Intellectual Property section of the agreement, Australia and the US reaffirmed their
membership of international treaties, such as TRIPS4 and included agreements to
accede to the World Intellectual Property Organization Internet Treaties (WIPO
Copyright Treaty – 1996) and WIPO Performances and Phonograms Treated (1996)
and agreements to comply with the Hague Agreement Concerning the International
Registration of Industrial designs (1999) and the Patent Law Treaty (2000). The IP
subject matter of the AUSFTA agreement covers copyright, trade marks, including
geographical indication, domain names, industrial designs, patents, and IP
enforcement.
Legal protection against circumvention of technological measures based on the
provision of the US Digital Millennium Copyright Act (DMCA)5 have been included in
IP sections of bilateral free trade agreements between the US and many countries
other than Australia, including Singapore, Morocco, Bahrain, Jordan, Chile and Costa
Rica6. Some of the FTA provisions have more flexibility than others so that they are
less likely to cause problems and restrict access to innovation, nevertheless the
FTAs have reinforced globalisation of IP rights.
YOU’VE BOUGHT IT, WHY DON’T YOU OWN IT?
“DRM is probably the most contentious three-letter acronym since GST”7
When you buy music on a standard CD you can play it on most CD players. A digital
music file, purchased from Apple’s iTunes store can be played on an iPod or on a
computer to which the user who purchased the song is signed in. It can’t be played
on any portable music player. DRM controls the use of the electronic file. DRM
systems have been seen by some as a solution to unauthorized copying of digital
content.
DRMs use technological protection measures (TRMs) such as sequences of digital
code to restrict certain uses of copyright material and can prevent users from
transferring films or music on DVDs or CDs to a computer hard drive. DRM
“watermarks” can track usage electronically so that collecting societies are informed
and can distribute royalties fairly. They can also limit access to content and prevent
copying. They can damage users’ computers by loading up proprietary software or
devices. DRMs can prevent CDs from being played on more than TWO devices
before locking. They can prevent uses allowed under fair dealing exceptions even
when such copying is not a copyright infringement.8 The visually impaired in the UK
cannot make copies allowed under the Copyright (Visually Impaired Persons) Act
2002 because Adobe eBooks can have ‘accessibility’ settings disabled.9 James
Love, US consumer advocate, has proposed a compromise in the use of DRMs by
suggesting the introduction of a special-case application and registration for legal
protection. Without registration it would be legal to bypass the TPMs.
Whether it is legal or not there have been countless successful attempts to
circumvent DRMs. In early 2007 Sony DAD Austria, an Austrian company, and a
related Australian company, (“Sony Australia”), took action against Digital Digest Pty
Ltd10 for circumvention of their ARccOS system11 by a computer software application,
RipIt4Me. Sony alleged that RipIt4Me had no legitimate non-infringing purpose and
was designed to crack the ARccOS copy protection technology. The RipIt4Me
software was released in June 2006 and was frequently updated with new versions
to match the ArccOS updates. The viability of ArccOS as a copy control system was
challenged internationally through the web site and connections in the US, Israel and
Canada. The internet and the ease with which it can make it possible for operators
to disguise their identities can make it difficult to identify the location and people
behind such software. Also the information necessary to prove infringement can be
highly volatile and vulnerable to loss due in part to the inherent nature of the relevant
computer system.
The software FairUse4M which has a simple drag-and-drop interface can crack
Microsoft’s DRM and unlock protected music and movies. Two earlier versions of the
program were not as successful. Microsoft reportedly employs a full-time team to
prevent breaches and have adopted software that can be quickly modified to prevent
circumvention.12
TPMs, until circumvented, can offer a higher level of protection than the control
available under copyright law. They can restrict users from doing things that
copyright law permits. It can be extremely difficult getting music or movies with
DRMs to work on different players. Apple’s FairPlay system, used in the iPod and
Microsoft’s Windows Media system embed a licence in the audio or movie file that
restricts playing or copying unless the user can be identified as the original owner.
This can create difficulties for users upgrading to a new PC.
The options for a user restricted by DRMs is to burn the music to a CD, then re-rip to
a standard MP3 file using illegal tools that crack the DRM. Apple, recognising the
problem, has recently offered music for sale on iTunes that is not encrypted with
better audio quality at a higher price ($2.19 per track rather than $1.69)13 These files
have some protection by including the original purchase details, so that if they are
shared around the user can be tracked. While digital music remains more expensive
than CDs they will not be the format of choice.
DRM is a system used for protection and supported by the International Federation of
the Phonographic Industry to try to control the alleged 20 billion illegal song
downloaded in 2005.14 Those who try to circumvent the DMRs face the criminal
provisions of the Copyright Law.
DRM systems make it impossible to incorporate Fair Use provision, such as the
rights of libraries and educations to provide information to users and the First Sale15
doctrine and they make it difficult to make a backup copy of music or videos. It is a
system that provides a way of locking up content and denying access.
HOW MUCH CONTROL?
Can you control an idea?
In Baigent & Anor v The Random House Group Ltd,16 the authors of The Holy Blood
and the Holy Grail (HBHG)17, claimed that Dan Brown, author of the Da Vinci Code
(DVA) copied a substantial part of HBGH in six chapters of his book. The issues
were whether the central theme and its 15 points were copied, whether this was from
direct or indirect copying and, if so, whether the parts that were copied amounted to a
substantial part of the HBHG. The Court considered what relevant material was
found in both works, how much, if any had been copied and whether what was
copied was the ideas or the expression of the ideas, furthermore if what was copied
was the expression of the ideas, whether this represented a substantial part of the
novel.
The Court held that there was no clear principle that assisted in establishing the line
between the “legitimate use of the ideas expressed and the unlawful copying of their
expression.”18 Only a careful analysis of the facts of each case can determine
whether there has been copying. In regard to the word similarity between the two
books, it was found that the similarity was “trifling”. In relation to the Central Theme
and the 15 points, it was held that 11 of the 15 could be found in the DVA, however
that whatever copying had occurred was not a “substantial part”. The copyright in
HBHG was held to exist because of the skill and labour of the authors in the original
manner in which they expressed the results of their research. The originality was
held to exist in the“19original selection, arrangement and compilation of the raw
research material” but should not enable the copyright owner to:
“monopolise historical research or knowledge and prevent the legitimate
use of historical and biographical material, theories propounded, general
arguments deployed, or general hypotheses suggested (whether they are
sound or not) or general themes written about.”20
The Court found that some of the elements were not copied because they consisted
of ideas which were in the public domain, such as the idea that “Jesus was of royal
blood, with a legitimate claim to the throne of Palestine” or element 8 which
concerned a view of history, that at the end of the century Christianity had become
the official religion of the Roman Empire following the adoption of ‘Pauline’
Christianity in the fourth century under the leadership of Constantine. If deliberate
copying of language as well as historical incidents occur then it is possible to find
copying of a substantial part, such as found in Ravenscroft v Herbert 21 or in Harman
Pictures NV v Osborne22 where John Osborne’s film script was held to contain so
many similarities in detail and choice of incidents that it was found to have copied the
historical work, The Reason Why.
This is not a case that would have been brought to the attention of the Courts had the
Da Vinci Code been financially unsuccessful. The extraordinary value of the IP rights
led to an attempt by other authors to claim control of the IP rights in the book.
Slivers of information
In Nine Network Australia Pty Ltd v IceTV Pty Ltd23, Bennett J of the Federal Court
distinguished copyright infringement in relation to compilations in the digital
environment from compilations in an analogue format. This case was an attempt by
the Nine Network to control IceTV’s program guide.
IceTV publishes an electronic program guide the IceGuide for subscribers. This
shows details of television programs which are scheduled to be broadcast by free to
air television stations for the next 6 – 8 days. It does not receive information from the
Nine Network but “predicts” the information on the basis of Nine Network’s past
programming, then checks this against publicly available information in the
Aggregated Guides. Amendments are made on the basis of discrepancies found
between the Aggregated Guides and the IceGuide.
The Nine Network had claimed that IceTV’s electronic program guide infringed the
copyright in its Weekly Schedule. The allegation was that the IceGuide reproduced a
substantial part of the Weekly Schedule in making and updating the IceGuide. It was
alleged that the IceGuide included almost a 100% reproduction of the time and title
information in the Weekly Schedule. The claim was based on the decision in
Desktop Marketing Systems Pty Ltd v Telstra Corporation Ltd24 In that case
copyright attached to the compilation. It concerned a telephone directory of
subscribers in alphabetical order. The labour of collecting, verifying, recording and
assembling the data provided the copyright protection rather than the form of the
compilation. The form of the compilation followed from the collection and the nature
of the telephone directory. The skill and labour was protected because sufficient skill
and labour was expended in collecting the material for inclusion in the telephone
directory. Form is protected when the form of presentation or arrangement of a
compilation is a product of the skill and labour of the author. Desktop was
distinguished from the facts of this case. In this case it was held that different
content and modes of expression and arrangement may be used for a television
program schedule. IceTV was held to have use its own skill and labour by using its
computer software to insert information into the IceGuide. It did not take the skill and
labour attributable to the form of the compilation.
It was held that the copyright subsists in the compilation as a whole as a literary
work. The compilation consists of the components such as the days of the week,
program title, the synopses and additional information. The Weekly Schedule was a
product of the Nine Network’s skill and labour. The Nine Network was unable to
claim copyright in the Late Change Notices or the time and title information of a
single day or week. Aggregated Guides, such as those produced by Yahoo from the
Weekly Schedules were held to be separate compilations.
IceTV, by independent inquiry was held to have compiled a separate compilation.
This was achieved by Mr Rilett, the ‘Content Manager’ when he watched television
for three weeks recording all the details of the programs, during what he referred to
as the ‘torture period’ in 2004. During this period he created templates which were
populated with information he had recorded, including such information as movie
time slots, classifications and program names. Mr Rilett compiled 24-hour television
program guides using the IceTV database and other computer programs. The
IceGuide, the Weekly Schedule and the Aggregated Guides25 were held to differ in
the manner of selection, expression and arrangement. They differed in the content
and modes of expression and arrangement. IceTV did not take “slivers of time and
title information” from the Aggregated Guides each day and was held not to have
reproduced a substantial part of the Weekly Schedule. While a very close correlation
between the program time and title information was found between the IceGuide and
other Aggregated Guides, important differences were also found. IceTV relied on the
means of entry of data into the IceGuide, devised to avoid copyright infringement.
When the computer program used by Ice was reviewed by a computer forensic
specialist it was found that it enabled a level of prediction of the next week’s program
based on historical data. Ice updates its schedules using different online Aggregated
Guides.
Bennett J held that the fact that copyright subsists in the Weekly Schedule as a
whole does not mean that the individual facts and components also attract copyright
protection. The form and content of the presentation of the data were not predetermined
by the nature of the compilation. The Weekly Schedule reflected the skill
and labour of gathering the facts and in the selection or arrangement of the
information. Only the originality of expression was held to be relevant, not the
originality of the idea the subject of the expression. The IceGuide was held not to
have taken a quantity of information sufficient to amount to a substantial part of the
Aggregated Guides or Weekly Schedule when considered as a whole and it was held
not to have taken the form of the compilation. It did not reproduce a substantial part
of the work in which copyright subsists in the Weekly Schedule. The users can make
the IceGuide appear in different formats, either multiple channel or single channel.
Programs may be selected and recorded and the data is stored in files on the hard
drive of the user’s computer/television as a text file with has different format and
appearance to the IceGuide.
The positive result for IceTV will impact on the future availability of interactive TV
guides in Australia. The original idea was based on an electronic program guide
(EPG) so that users can bring up a TV guide on their screen and click on it to record
or view. The program would then set the time and channel make recording
extremely easy. It was an idea that became possible with the development of digital
TV. The information available in publications like TV Week couldn’t be copied due to
copyright restrictions. The process used by IceTV enabled the EPG to be created
without breaching copyright. It may mean that more companies will make IceTV’s
EPG available in Australia. In the US IPG is included with Microsoft Vista. In
Australia, at the moment, Microsoft Vista can record TV but not using EPG.
Controlling what you own and what you don’t own - The James Joyce Estate
Stephen James Joyce, James Joyce’s grandson has controlled publication and
scholarship relating to his grandfather’s works with hostility, intimidation and litigation.
He regards academics as ‘rats and lice – they should be exterminated!”26 He is
known as one of the most zealous defenders of any literary estate. Stephen Joyce’s
response to Michael Groden27’s multimedia version of “Ulysses” in 2003 was to
demand one and a half million dollars and he told Groden: “You should consider a
new career as a garbage collector in New York City, because you’ll never quote a
Joyce text again.”28
Carol Schloss, Professor of English at Stanford University, brought an action for
declaratory judgment and injunctive relief against Sean Sweeney, Trustee of the
Estate of James Joyce and Stephen James Joyce. The problem arose because of
the Shloss’s biography of Lucia Joyce, the daughter of James Joyce – “Lucia Joyce:
To Dance in the Wake.”. As a result of a fifteen-year campaign of threats,
intimidation and fear of litigation Shloss agreed to cut substantial amounts of material
from the book. The deleted material, including many of the primary source materials,
was published on a website (the ‘Electronic Supplement’).
Examples of the sort of difficulties Shloss faced included her attempt to consult the
James Joyce papers in the Special Collections at the Lockwood Memorial Library at
the University of Buffalo, New York in 1994. The Library’s Director was contacted by
representatives from the Joyce Estate and warned that Shloss was not to be
permitted to access the materials. Following this Joyce denied Shloss approval to
use any letter relating to Lucia. When Joyce discovered that Shloss’ book was to be
published soon he informed her that he opposed publication of any Lucia-related
material and he had ‘never lost a lawsuit’29. He dismissed fair use as ‘a bad joke’
and ‘wishful thinking’ and further said of Schloss’ book that it was ‘the biggest pile of
horse and cow manure’ – ‘full of nonsense.’30
Legal action was launched against the estate. This was supported by lawyers from
the Stanford Law School’s Fair Use Project, including Professor Lawrence Lessig to
try to loosen the control of copyright holders, such as the Stephen James Joyce,
especially those who would discourage new creativity by their actions. Robertt Spoo,
a co-counsel for Shloss identified this case as one of copyright misuse and
demonstrated an attempt by the copyright owner to try to assert control over public
domain materials.31
The parties signed a settlement on 19 March 2007. This enabled Shloss to publish
the electronic supplement free of liability for copyright infringement. The case
clarified the validity of Shloss’ right to use materials that Joyce and the Estate had
tried to suppress for many years.
Joyce’s threats and lawsuits extended to many other scholars, including Brenda
Maddox’s epilogue to the biography of Nora Joyce (“Nora”), James Joyce’s wife,
because it referred to Lucia’s time in a mental asylum. Joyce decided he didn’t like
the music of an Irish composer so in 2000 he prevented him from using 18 words
from Finnegan’s Wake. He has prevented many public readings of “Ulysses” and
unsuccessfully tried to prevent a web audiocast of the book.32The Abbey Theatre
cancelled a production of Joyce’s play, “Exiles”. In 1997 he sued Danis Rose, and
Irish scholar, who tried to publish a new edition of “Ulysses”. This legal action lasted
five years. In 2004 Joyce threatened the Irish government he would sue if any
Bloomsday readings were staged. The Irish Senate had to pass an emergency
amendment to enable the National Library of Ireland from displaying James Joyce’
manuscripts. Thomas, Staley, from the University of Texas, closed the Joyce
Studies Annual after 12 years it avoid dealing with Stephen Joyce. Robert Spoo,
former editor of the James Joyce Quarterly, reportedly became a copyright lawyer
because:
“New biographies, digital representations of Joyce’s work, analyses of
Joyce’s manuscripts, and, to a lesser extent, criticism – they hardly exist.
People either despaired of doing them…or the demands were so high that
they just didn’t feel it was worth continuing the discussions.”
Most Joyce scholars will find it easier to wait until 2012 when the unpublished works
enter the public domain before they attempt any further analysis. The Joyce Estate
has been the beneficiary of the successful lobbying by US corporations and
organisations such as the Recording Industry Association of America, to extend the
copyright term. It demonstrated how unrealistic many copyright holders have
become in understanding the limitations of their control.
Control of ideas in Science
“..it should also not be the sole domain of a few owners of key intellectual
property rights who can globally control, direct, or limit innovations
essential to the future survival and well-being of our species.”33
Patent law, most useful in its application to scientific ideas, provides protection from
copying and protection against all subsequent invention. It is a wider protection than
has previously been available, however the standard for gaining patent protection is
higher. It is an ancient form of protection, understood by the ancient Greeks where
the importance of providing exclusive rights to ensure disclosure and incentives can
be traced to Sybarus, a Greek colony in Italy. This was a colony known for enjoying
a luxurious life style. The historian Phylarus wrote:
“The Sybarites, having given loose to their luxury, made a law that…if any
confectioner or cook invented a peculiar and excellent dish, no other artist
was allowed to make this for one year; but he alone who invented it was
entitled to all the profits to be derived from manufacture of it for that time;
in order that others may be induced to labour at excelling in such
pursuits.”
In the digital era the explosion of ideas and inventions, otherwise referred to as the
“internet tornado”34 hit the IP scene in the late 1990s. The Patent offices, particularly
in the US became swamped with applications. By 2004 it was reported that there
was a backlog of 500,000 patent applications with 350,000 new applications a year.35
Some of these problems may be solved by the Patent Reform Act (2007) which will
change to US system from a first-to-invent to a first-to-file bringing the US into line
with most other patent systems. It is a reform opposed by bioscience, biotechnology
and pharmaceutical industries because of the limitations on financial penalties for
infringements and the downgrading of patent rights. Yet excessive protection,
particularly in medicine, puts the provision of benefits for millions of people at risk.
The consequences of patent control were examined recently at the OECD36 Forum in
May 200737 A number of speakers identified major issues that could benefit from
improved co-ordination and global sharing of innovation. The Japanese Minister of
Economy, Trade and Industry presented detailed suggestions and examples of
benefits to be gained from a favourable environment, including the response by
Japan in the 1970s to the petrol crisis where technological innovation and civic
consciousness the purchase of hybrid cars. The Italian Minister for Economic
Development called for a “new culture of innovation” with the sharing of ideas
between all sectors of society and governments which ensure “innovation is not a
monopoly”.
Of greater concern at the OECD Forum was the relationship between patent control
and access to health care. The head of research for Intermon Oxfam called for a
new “social contract” in denouncing the exorbitant price of medication in developing
countries for which he saw drug patents as a crucial issue. He reproached the WTO
for the overprotection of patent holders and referred to the ‘10/90 disequilibrium’ –
10% of research being devoted to diseases that afflict 90% of the world’s population.
This includes disease such as malaria and leprosy while the majority of research
effort is spent on curing such conditions as obesity, heart disease and diabetes.
The problem is however not so easy to solve. The demonization of the
pharmaceutical companies will not solve the problem. In defending the
pharmaceutical industry, Thomas Wellauer from Novartis38explained that 9 out of 10
drugs are developed by pharmaceutical companies, not by governments and 90% of
all medications listed by the WHO39 are not under patent. Further he stated that it is
the pharmaceutical companies who have driven innovation and people need to
appreciate the risks involved.
There is also considerable uncertainty over the market value of patents. Very few of
the patented innovations in biotechnology and the pharmaceutical industries are
commercialised. Therefore most patents confer very limited returns and a small
percentage are associated with very high returns.40
Control over agricultural biotechnology has also created concern. It was alleged
recently by Richard Jefferson, founder of Cambia-BiOS41 that a few multinational
corporation have accumulated extensive patent estates over genes and other
important information relating to innovation.
He promotes transparency in international patent systems and ‘open source’
development. He has called for a rethink of patent policy to ensure access for poorer
nations and disadvantaged communities.
OUT OF CONTROL!
Intimidation on Campus
“…this fight is about money, not about morality…”42
The increase in the control of ideas by the misuse of IP rights can be seen in the
interference taking place on college campuses. Universities in the US are being
pressured to monitor the computer networks used by students by using ‘filtering’
technologies to discover those who are infringing copyright by file sharing. The
Recording Industry Association of America (RIAA) has brought more than 20,000
federal lawsuits against individuals in the US between 2004 – 2007 targeting over
1,600 students alone between May and July 2007 demanding payments of US$3,000
for copyright infringement using. The US Congress Committees wrote to 19 major
US universities requesting information on what steps are being taken to stop illegal
music and movie file-sharing by students. While the colleges recognise the
importance of IP rights and the dangers of piracy, they are also concerned about the
interference in academic independence and the privacy of students.
The likelihood of these measures solving the problem is remote. TPM are met with
circumvention measures and music sharing off line by pooling computers and
swapping hard drives. The RIAA has offered low cost subscription plans for
unlimited downloads to avoid any attempts at circumvention measures.
Other companies like Nestlé, Toyota and individuals like Bikram Choudhry have
pushed the boundaries of control for economic gain with the remote hope that their
tenuous claims to IP rights would be recognised. Nestlé, in August 2007, created
fury in the coffee industry by trying to control images of coffee in a coffee mug. One
image is of a cup of black coffee in a white cup viewed from above and the other is
an image of a red coffee mug viewed from the front. If the application is successful
most members of the coffee industry, whether cafes, wholesales or roasters maybe
found to have breached copyright.
Complaints to the Australian Coffee Traders’ Association are related to Nestlé’s
attempt to register generic images and words. Nestlé has already registered the
word “decaf”, so this is seen as a further threat by the coffee industry to Nestlé’s
encroachment on “ideas” in coffee. The Trade Mark office has considered the
images sufficiently distinctive, however there is still an opposition period of three
months. This is about control of the coffee industry rather than creativity.
Toyota Motor Corporation, the Japanese multinational corporation and one of the
largest manufacturers of automobiles has recently considered suing Jetstar because
this budget Australian airline has used the ‘Toyota-style jump’ in its advertising
campaign. Toyota has successfully trademarked “Oh, what a feeling”. This
trademark is valuable IP and like many other companies who are trying to own
colours, smells, shapes and tunes, this claim would test the limits of ownership. A
representative of Toyota was reported as saying:
“The jump is an absolute branding device. As custodians of our brand it’s
beholden on us to make sure that they (Jetstar) are not misrepresenting us
in any way…It’s just a question of whether their jump is too close to ours”.43
In 2002 Bikram Choudhry, a yoga teacher from California, registered the sequence of
26 yoga asanas performed in a steam room. The Open Source Yoga Unity sought a
court declaration that this copyright was unenforceable but settled out of court in May
2005. The Indian Ministry of Health protested to the USPTO over the yoga-related
registrations in the US44 which have included 150 copyrights, 134 patents and 2,315
yoga trade marks and the grab for control of information relating to 5,000 year old
teachings in yoga.
An innovative social network web site www.facebook.com demonstrates the value of
ideas. It also raised the question of who really owns the web site and who really
controls the information. It offers the opportunity for users to interact, create an online
identity and new relationships and communities. Individuals with similar social
identities can find others with common interests. Users can upload photographs,
enjoy a home page, and have an online message board or ‘wall’. The subscribers
freely provide valuable information. The site is so popular it is reportedly growing at
the rate of 150,000 members each day45 with a total of somewhere between 3046 –
52 million47 users. It is also alleged that the founder, Mark Zuckerberg, had received
tempting offers for Facebook, including one from Yahoo! for nearly $1bn48. It was a
site launched in 2004 at Harvard and had 1,200 students registered within a day49. It
expanded to other universities. Gradually the site was made available to high school
students and others as it became unrestrictive and an attractive alternative to
MySpace.
In July 2007 Zuckerberg’s ownership was challenged by three fellow Harvard
students who claim that he stole the source code, business plan and design from
their site, ConnectU. They claim that Zuckerberg stole their idea for the web site and
was deliberately obstructive and deceptive after he had agreed to assist them.
Another claim emerged more recently, that of Aaron Greenspan, another Harvard
classmate who established a simple web system called houseSYSTEM four months
before Mark Zuckerberg launched Facebook. Zuckerberg was the first to raise the
venture capital and capture the market. As with most new technology it is difficult to
establish who had the idea first and it is not always the person with the idea who
wins. Bill Gates and Paul Allen are alleged by some to have copied a version of
BASIC designed by others to start Microsoft.
The value of this site is attributable to the value of the information it contains. It was
built on the knowledge and input from subscribers. The value for the controller is in
the size of the user base and the information provided by participants. Users who
want to close their account find they can only de-activate, thereby leaving information
they may wish to control on the internet.
THE FUTURE
The Professor of Ideas - “The Law has lost touch with its purpose”
Professor Lessig had been a leading academic and activist in IP law has questioned
the fundamental tenets of copyright law in face of the continued extension of the
period of control. He is the author of a number of authoritative texts on Copyright
Law and been a leading advocate in many important IP cases.
However, in his keynote address at the iCommons iSummit in June 2007 Professor
Lawrence Lessig announced his decision to shift his academic work and activism
away from IP and free-culture issues. In his web blog,50 the reason given was
“corruption”. He was not referring to political corruption but “corruption in the
economy of influence” and the economic lobbying and power of the RIAA and
Hollywood. His disappointment was in a government that couldn’t even get an issue
as simple and clear as term extension right. He has turned his attention to the issue
of “corruption” itself.
Professor Lessig was the lead counsel for the plaintiff in Eldred v Ashcroft51. This
was a US Supreme Court constitutional challenge to the 1998 Sony Bono Copyright
Term Extension Act (CTEA)52. The CTEA extended existing copyright term by 20
years for new and existing works for works and for those published before 1 January
1978 and still in copyright on 27 October 1998 the extension was to 95 years.53
Eric Eldred, the lead plaintiff is an Internet publisher of public domain texts and
derivative works for non-commercial purposes. Eldred wanted to upload works of
literature as their copyright expired and they entered the public domain. He
challenged the Bono Act’s provisions that would prevent this. The plaintiffs submitted
that the retroactive extension of the copyright terms violated the US Constitution’s
Copyright Clause because continual extension would in practice guarantee unlimited
copyright protection54. The Supreme Court held that the retroactive term extension
can comply with the “for limited times” provision of the Constitution, as long as the
extension is limited and not perpetual. Two Judges dissented, arguing that the CTEA
amounted to a perpetual grant of copyright but continually renewing copyright terms.
Both Judges failed to consider how the copyright term extension could possibly
encourage creativity.
Lawrence Lessig is reported as saying he should have made the case more about
the legislative changes locking up culture and less about Mickey Mouse55. His focus
had been on emphasising the impact of the copyright extension term on the
profitability of Disney studios from one of their most famous characters. When asked
by Justice Kennedy of the Supreme Court for empirical evidence of the way
extending copyright has prevented cultural progress Lessig focussed on the
Constitutional issue. In assessing how he should have argued the case he
considered that what he should have emphasised is that about 90% of the material
that had its copyright extended for an additional 20 years is not commercially
available and it is impossible to seek permission from copyright owners when there is
no records of who they are or where to find them. Projects like Google’s book search
which aims to index 18 million books and make them searchable, are almost
impossible to achieve – 16 % are out of copyright, 9% are in copyright and in print
but 75% are in copyright and out of print.56
Recent Development in the Federal Court
Vu v New South Wales Police Service57 concerned an appeal to the Federal Court of
Australia against the severity of a sentence imposed by the Local Court of New
South Wales on 20 June 2007. The sentence imposed was six months periodic
detention. Mr Vu had pleaded guilty to 35 charges of contravening s 132(2A)(a) of
the Copyright Act 1968 (Cth)58. He had been making additional income in his video
shop by hiring and selling counterfeit DVDs, including such popular titles as
“Madagascar” and “Harry Potter and the Goblet of Fire”. In sentencing Mr Vu, Rares
J was obliged by s 16A(1) of the Crimes Act 1914 (Cth) to impose a sentence or
make an order of the severity appropriate in all the circumstances of the offence,
considering: the nature and circumstances of the offence; other offences that are
required or permitted to be taken into account; the course of conduct; Mr Vu’s
contrition; the guilty plea; the degree of co-operation; the deterrent effect on Mr Vu;
what is adequate punishment; Mr Vu’s circumstances; the prospects of rehabilitation
and the effect on Mr Vu’s family.
On appeal to the Federal Court, Rares J imposed a three year good behaviour bond
with a self-surety in the sum of $1,000 conditional on Mr Vu paying a penalty of
$5,000. Only the future will demonstrate how much Federal Court time will be taken
up with a consideration of the harsh penalties of the Copyright Act and whether they
will by effective in achieving compliance.
Sharing the Future
Technology and the internet offer the opportunity to share global information and
knowledge, however, paradoxically technology also offers the opportunity for
information to be locked away by TPMs and DRMS which can control every use and
re-use of work so that there is limited access to past creativity for the future
generations to build on.
Access to information and the sharing of ideas can be achieved using licensing
systems such as those provided by Creative Commons59. This is a non-profit
organization which provides free tools for authors, scientist, artists and educators and
offers more flexibility in ownership of creative works and greater access for others to
share ideas. It encourages people to share digital material by providing licences.
The licences allow copyright holders to give some or all their rights to the public and
retain others as well as providing free licenses. It was launched in 2001 by
Lawrence Lessig, the founder and former chairman. Originally it was designed for
the US legal system but gradually modified to suit over 40 other jurisdictions. OER
Commons60 is a teaching and learning network which provides open educational
resources for teachers and students. CC Labs61 is a site for new technology projects
with a “Freedoms” license generator, a simplified DHTML licensing engine and
experimental metadata.
Free Software62 and open source software are also other ways that provide a
platform for sharing ideas. Free software can be distinguished from “Open Source”63,
they are separate movements with different views although there is some
collaboration between the two and agreement on the practical recommendations.
Free Software is the movement that developed software such as GNU64/Linux65.
Linux is supported by corporations such as IBM, Red Hat and Sun Microsystems.
The internet also provides extraordinary opportunities for sharing of knowledge. A
study by Gunter Eysenbach in 200666 has suggested that scientific papers published
online in open-access journals have more impact and are cited more often.
The World Intellectual Property Organisation has recognised that there is a
“knowledge gap” and “digital divide between wealthy nations and poorer ones.
Developing nations, led by Brazil and Argentina, called for consideration of improving
developmental structures which would “promote technological innovation, wealth
transfer and dissemination of knowledge” 67at the same time ensuring a high
protection for intellectual property. The Provisional Committee on the Development
Agenda will report to the September 2007 General Assembly, with recommendations
for action on the agreed proposals. Twenty one recommendations were adopted at
the meeting of WIPO members on 15 June 2007. Some of these recommendations
include the initiation of discussions on how access to knowledge and technology can
be facilitated and creativity and innovation fostered. Also it was acknowledged that
assistance can be provided to develop and improve national IP institutional capacity
and promote a fair balance between IP protection and the public interest.
A practical solution to the problem of information sharing has been offered by James
Love, US consumer advocate in promoting a “special-case application”68. This
proposal would ensure that the entertainment industry, predicated by outdated
business models on controlling and charging for access would be able to register for
legal protection using DRMs. He considers that producers and distributors of
computers games would have a justifiable case for DRM protection and this could be
granted routinely, for a qualified period of time. Other “knowledge goods”, such as
journals it would not be so appropriate, so that copyright law and the market would
determine access. One of the problems he sees with the present system is that
TPMs are embedded in digital works without consumer participation in the access
debate. The registration process could provide the opportunity for consumers to
present their point of view.
There is evidence that the conflict between those advocating greater access to ideas
and those controlling the information has escalated, creating an exclusive knowledge
economy.
“…while the Internet has indeed produced something fantastic and new, our
government, pushed by big media to respond to this “something new”, is
destroying something very old. Rather than understanding the changes the
Internet might permit, and rather than taking time to let “common sense”
resolve how best to respond, we are allowing those most threatened by the
changes to use their power to change the law – and more importantly, to
use their power to change something fundamental about who we have
always been.” (Prof Lawrence Lessig)69
The adoption of measures which encourages more open access to information and
the sharing of the “knowledge economy” has the potential to restore the balance to IP
rights and encourage creativity.
* Jennifer Farrell, Deputy District Registrar, Federal Court of Australia
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