The ADA Monthly Intellectual Property Wrap-Up
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A monthly summary of recent legislation, cases, reports and other events
relating to Australian intellectual property and the public interest. 
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December 2000
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[1] About this publication
[2] The Intellectual Property and Competition Review
[3] The Andrews Committee Report on Copyright Enforcement
[4] Microsoft v Business Boost: Temporary Copies Are A Reproduction
[5] Review of Australian Internet Domain Names 
[6] The Hague Convention on Jurisdiction and Foreign Judgements in Civil
and Commercial Matters
[7] The Copyright Amendment (Moral Rights) Act 2000
[8] I Can Copy, Right?

>[1] About This Publication

This summary of recent IP happenings of relevance to Australia will be
published every month by email and on the Australian Digital Alliance
website at www.digital.org.au. If you have any suggestions as to what you
should go in the next issue, please let the Nick Smith know by email:
(nsmith§nla.gov.au).

Also welcome are any ideas for a better name for this publication. Anything
apposite, subtly funny and erudite will do.

>[2] The Final Report of the Intellectual Property and Competition Review
Committee (IPCRC)

On 6 December 2000, the IPCRC released its comprehensive review of
intellectual property legislation under the Competition Principles
Agreement. This Report examines copyright, patents and trademarks (as well
and as the 51(3) exemption for IP in the Trade Practices Act) from a
competition perspective.

The Report (which can be found in full at www.ipcr.gov.au) contains many
positive elements. While endorsing the need for the 3 year review of the
Digital Agenda Act which the Government is already committed to, the
Committee supports: (i) the role of libraries in disseminating electronic
material; (ii) the decompilation (reverse engineering of computer programs)
exceptions; (iii)  the making of caching copies on the Internet; (iv) the
public policy exemptions to circumvention device offences; (v) increased
oversight of collecting societies; and (vi) the repeal of parallel
importation restrictions. It also opposed an extension of the term of
copyright protection (such has occurred in the US and Europe).

>[3] The Andrews Committee Report on Copyright Enforcement

The House Committee on Legal and Constitutional Affairs recently released
its report on copyright enforcement, 'Cracking Down on Copycats: Copyright
Enforcement in Australia' (who comes up with these titles?). 

The Report contains a number of recommendations which either make the
process of copyright infringement litigation or criminal prosecution easier
for plaintiffs or increase the penalties that defendants may face. There are
also proposed new offences. 

The proposed litigation 'improvements' (a number of which have distinct
civil liberties implications) include: (i) the reversal of the onus of proof
in civil (and criminal) cases with respect to ownership of copyright; (ii)
increased powers of civil seizure of infringing material; (iii) the
withdrawal of the privilege against self-incrimination in civil proceedings;
and (iv) reversal of onus of proof in relation to defendant's knowledge in
civil actions.

Full text of the report:
http://www.aph.gov.au/house/committee/laca/copyrightenforcement/contents.htm

More information: http://www.digital.org.au/issue/copycats.htm

>[4] Microsoft v Business Boost: Temporary Copies Are A 'Reproduction'

A recent decision by the Federal Court held that copying copyright material
into the Random Access Memory (RAM) of a computer is a 'reproduction in
material form' for the purposes of the Copyright Act. 

This hammered the last nail into consumers' right to read. Because all use
of electronic material (including viewing it on a screen to read it)
necessarily entails making temporary copies, then (electronic) reading
becomes an activity that requires a licence. 

An exception in the Digital Agenda Act exempts some temporary copies from
the exclusive right of the owner but only those made as part of a
communication.  For all other copies, you'll need permission...
 
The full text of the case is available at:
http://www.austlii.edu.au/au/cases/cth/federal_ct/2000/1651.html 

> [5] Internet Domain Names 

Internet Domain Names are an important part of the infrastructure of the
Internet and, as such the Domain Name Space (DNS) is an important public
resource. .au Domain Administration (.auDA), the self-regulatory body which
governs the Australian DNS is looking at the issue of who should be entitled
to what domain names and under what conditions. 

Its Name Policy Advisory Panel sought responses to its public consultation
report (available here:
http://www.auda.org.au/panel/name/papers/publicreport.html). The ADA made a
submission (available here:
http://www.auda.org.au/panel/name/submissions/smith.html)

The gist of the ADA submission is the Australian DNS should cater equally to
all potential users, be they individuals or organisations, commercial or
non-commercial.

> [6] The Hague Convention on Jurisdiction and Foreign Judgements in Civil
and Commercial Matters

The purpose of the draft Convention is to provide an orderly international
framework for recognition and enforcement of civil judgments. There is a
concern that the Convention might be used to the disadvantage of consumers
by allowing businesses to locate in countries with favourable laws and have
them enforced world-wide. It is possible, for example, that a plaintiff
might sue an Australian web site owner for copyright infringement in Europe
with respect to material that is in the public domain in Australia (because
of the different period of copyright protection). This European judgment
might then be recognised in an Australian court.

A diplomatic conference is due to discuss this convention next year. It is
important that Australia does not sign up to a treaty that would allow for
the de facto application of foreign laws in this country.

More information about Hague Convention issues can be found here:
http://www.cptech.org/ecom/jurisdiction/hague.html

The Attorney-General's Department issues paper can be found here:
http://www.law.gov.au/publications/haguepaper/

> [7] The Copyright Amendment (Moral Rights) Act 2000

The Commonwealth passed the Moral Rights Act on 7 December and it is likely
that this legislation will commence shortly. Moral rights (the right of an
author to object to certain uses of a work that damage their reputation)
have been canvassed in Australia for a number of years.

The Moral Rights Act grants authors the right to: (i) be attributed as the
author of their work; (ii) to object to false attributions of their work;
and (iii) the right to object to derogatory acts with respect to an author's
work which harm that author's reputation (the right of integrity). 

Moral Rights legislation has been held up for some time over the issue of
waiver provisions: under what circumstances can an author waive their moral
rights? Business groups have sought a broad waiver to allow authors to waive
all their rights up front, rendering moral rights more or less worthless in
a number of situations. The final compromise waiver is narrower than the
Government originally proposed.

> [8] I Can Copy, Right?

Yes, you can copy this publication. Feel free to send it to friends or
colleagues, print it off or even archive it on your website provided that
all text is included or, in the case of an excerpt, appropriate credit is
given.
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Nick Smith
Executive Officer  ::  Australian Digital Alliance  
Copyright Advisor  ::  Australian Libraries Copyright Committee
PO Box E202   \\   Kingston ACT 2604
Ph: 02 6262 1273   \\   Fax: 02 6273 2545
Email: nsmith§nla.gov.au   \\   Web: www.digital.org.au
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