Three Overall Aims of IP Policy =============================== 1. Balance in IP law to protect ALL creators and innovators - not just existing owners. A recognition that new creators need to be protected from overly strong protection of current players. Almost all innovation is incremental, and requires the use of work which went before. That work must be available for use by small players if they are to be large players tomorrow. 2. Ensuring the rights of Australians to enjoy their legitimately purchased works in all legitimate ways. We must overcome the anomalies that currently make Australians, including senators, repeat infringers of copyright. 3. Ensuring a balance of IP law in the interests of Australia and Australians. The granting of significant but limited IP monopoly powers is designed to spur creation of new works. However, it is universally recognised by economists that IP monopolies restrict competition, and hence must be carefully tempered lest they have the effect of reducing innovation and creativity, allowing incumbents to lock out new players. Australia is a net IP consumer, so tipping the balance away from the consumer balance is a direct cost for our economy. General IP Proposals ==================== 1) An undertaking not to do ANY extension of ANY IP right - including under the AUSFTA - without full economic assessment of its costs and benefits by the Productivity Commission. A requirement that the CLRC in considering any amendment to IP must obtain advice on the economic costs and benefits from the Productivity Commission. 2) The envigoration of the role of competition law in this area. A specific ACCC Assistant Commissioner with responsibility for the area and for the development of IP Licensing Guidelines that address not only licensing conditions between companies, but also the "licensing conditions" placed by IP owners on consumers and when these will be considered unfair or abusive. Copyright Law ============= The Rights of Australians: 3) More specific copyright exceptions which guarantee reasonable control over works: time shifting, space shifting, format shifting.[1][2] 4) Broad fair use defence for other non-commercial use, to help in future cases which are harder to foresee. 5) Orphan works: some limit of liability when someone picks up a work which lies unused. As copyright keeps extending and the world moves faster and produces more copyrightable works, some method of finding rights holders or guaranteeing a limited liability for disused works is required for an efficient economy.[3] Control of Recent and Future Changes in Law: 4) A review of the standard of originality: raising the threshold so that Australia is no longer one of only a very small number of countries that grant copyright protection to utterly unoriginal, factual databases and the facts that they contain.[4][5] It should be recognised that access to databases plays an increasingly important role in research and scientific progress.[6] Encouraging legal online distribution: 5) Online distribution should be encouraged as a uniquely efficient method of distribution of works, particularly given Australia's physical distance from major potential markets. Allowing current copyright holders an unlimited monopoly on online distribution does not meet this aim; some form of compulsory licensing should be considered. Para-copyright Law ================== Containing the anti-competitive effects of anti-circumvention laws: 6) Anti-circumvention laws should be used to protect copyright, but not to deprive consumers of rights. They must (i) not undermine parallel importing, (ii) respect first sale principles and consumers rights to use their legitimately purchased works, and (iii) pass the three litmus tests of competitive devices, open access and clarity.[7][8][9] 7) Specific affirmative protection for the creation of interoperable software that recognises the need to interoperate with both computer programs and media, overriding anti-circumvention and even, if necessary, copyright. Patents ======= Making patent-seekers work for their 20-year monopoly: 8) The bar for patentability should be raised, to avoid the "we came up with 7 patents in an hour" problem[10], and reduce patent clustering. Restoring limits on what can be patented to areas which need patents: 9) Protection against software and business method patents as the EU parliament did, either by forming a stricter definition of what can be patented[11], or as a simpler measure by ensuring that software by itself cannot be held to violate a patent, even when combined with any multi-purpose device[12], or both. Protection for Open Source/Open Standards as a community good: 10) Specific protection for interoperability, as per the EU parliament: if a patented method is required for interoperability the patent cannot be enforced against that implementation.[13] 11) Specific protection for open standards, Open Source and widespread computing infrastructure: a "safe harbour" for existing deployments and a reasonable timeframe for developers to remove patented techniques. References: [1] FTA Senate Select Committee Labor Senators' Recommendation 8: http://www.aph.gov.au/Senate/committee/freetrade_ctte/report/final/alp.pdf Labor Senators recommend that the Senate Select Committee on Intellectual Property investigate options for possible amendments to the Copyright Act 1968 to expand the fair dealing exceptions to more closely reflect the 'fair use' doctrine that exists in the United States and to address the anomalies of 'time shifting' and 'space shifting' in Australia. [2] Joint Standing Committee on Treaties Report 61 Recommendation 17: http://www.aph.gov.au/house/committee/jsct/usafta/report/front.pdf The Committee recommends that the changes being made in respect of the Copyright Act 1968 replace the Australian doctrine of fair dealing for a doctrine that resembles the United States open-ended defence of fair-use, to counter the effects of the extension of copyright protection and to correct the legal anomaly of time shifting and space shifting that is currently absent. [3] Senate Select Committee Labor Senators' Recommendation 10: http://www.aph.gov.au/Senate/committee/freetrade_ctte/report/final/alp.pdf Labor Senators recommend that the Senate Select Committee on Intellectual Property should investigate the possibility of establishing in Australia a similar regime to that set out in the Public Domain Enhancement Bill 2004 (US), with a view to addressing some of the impacts of the extension of the term of copyright, in particular the problems relating to 'orphaned' works. [4] Senate Select Committee Labor Senators' Recommendation 9: http://www.aph.gov.au/Senate/committee/freetrade_ctte/report/final/alp.pdf Labor Senators recommend that the Senate Select Committee on IP review the standard of originality applied in Australia in relation to copyright material with a view to raising the threshold to a standard such as that in the United States. [5] Joint Standing Committee on Treaties Report 61 Recommendation 18: http://www.aph.gov.au/house/committee/jsct/usafta/report/front.pdf The Committee recommends that the Attorney General s Department and the Department of Communication, Information Technology and the Arts review the standard of originality applied to copyrighted material with a view to adopting a higher standard such as that in the United States. [6] ALRC Discussion Paper 68: Gene Patenting and Human Health (Ch. 30) http://www.austlii.edu.au/au/other/alrc/publications/dp/68/30.html#heading1 30.1 This chapter discusses the various means by which owners of genetic databases may seek to protect their investment in those databases, and considers whether reform is necessary to ensure reasonable third party access to these databases for the purpose of scientific research. [7] Senate Select Committee Labor Senators' Recommendation 12: http://www.aph.gov.au/Senate/committee/freetrade_ctte/report/final/alp.pdf Labor Senators recommend that the Commonwealth Government use the two year implementation period applying to effective technological protection measures to ensure exceptions will be available to provide for fair dealing including temporary copies, research and study and the legitimate private use and application of all legally purchased or acquired audio, video, DVD and software items on components, equipment and hardware, regardless of the place of acquisition. [8] Joint Standing Committee on Treaties Report 61 Recommendation 19 http://www.aph.gov.au/house/committee/jsct/usafta/report/front.pdf The Committee recommends that the Attorney General s Department and the Department of Communications, Information Technology and the Arts ensure that exceptions will be available to provide for the legitimate use and application of all legally purchased or acquired audio, video and software items on components, equipment and hardware, regardless of the place of acquisition. [9] Litmus Tests for Technological Protection Measures Legislation (Rusty Russell, Linux Australia) http://ozlabs.org/~rusty/anti-circumvention-litmus.html 1) If two devices perform the same function, and the first is "authorized" by a copyright owner and the second isn't, is it illegal to use the second one, and is it a criminal act to create it or distribute it? 2) If I access a protected work in a way unintended by the copyright owner, it it illegal, and is it criminal to create or distribute something which allows you to do so? 3) Would a reasonable person reading the law be sure that these legitimate competitive activities described in the first two tests are legal? [10] Software's game of mutually assured damage (Ross Gittens, SMH) http://www.smh.com.au/articles/2004/07/30/1091080437270.html So a colleague and I sat down for a few hours one afternoon, and tossed off six fairly straightforward ideas, of the sort that any competent worker in our field might come up with. The lawyer was delighted, but insisted on splitting one of our ideas in two, so then we had seven patents being filed in our names. [11] European Parliament (COM(2002) 92 - C5-0082/2002 - 2002/0047(COD)) http://www2.europarl.eu.int/omk/sipade2?PUBREF=-//EP//TEXT+REPORT+A5-2003-0238+0+DOC+XML+V0//EN&L=EN&LEVEL=2&NAV=S&LSTDOC=Y (13a) However, the mere implementation of an otherwise unpatentable method on an apparatus such as a computer is not in itself sufficient to warrant a finding that a technical contribution is present. Accordingly, a computer-implemented business method or other method in which the only contribution to the state of the art is non-technical cannot constitute a patentable invention. ... (13c) Furthermore, an algorithm is inherently non-technical and therefore cannot constitute a technical invention. Nonetheless, a method involving the use of an algorithm might be patentable provided that the method is used to solve a technical problem. However, any patent granted for such a method would not monopolise the algorithm itself or its use in contexts not foreseen in the patent. [12] European Parliament (COM(2002) 92 - C5-0082/2002 - 2002/0047(COD)) http://www2.europarl.eu.int/omk/sipade2?PUBREF=-//EP//TEXT+REPORT+A5-2003-0238+0+DOC+XML+V0//EN&L=EN&LEVEL=2&NAV=S&LSTDOC=Y (13d) The scope of the exclusive rights conferred by any patent are defined by the claims. Computer-implemented inventions must be claimed with reference to either a product such as a programmed apparatus, or to a process carried out in such an apparatus. Accordingly, where individual elements of software are used in contexts which do not involve the realisation of any validly claimed product or process, such use will not constitute patent infringement. [13] European Parliament (COM(2002) 92 - C5-0082/2002 - 2002/0047(COD)) http://www2.europarl.eu.int/omk/sipade2?PUBREF=-//EP//TEXT+REPORT+A5-2003-0238+0+DOC+XML+V0//EN&L=EN&LEVEL=2&NAV=S&LSTDOC=Y Article 6a Member States shall ensure that wherever the use of a patented technique is needed for the sole purpose of ensuring conversion of the conventions used in two different computer systems or network so as to allow communication and exchange of data content between them, such use is not considered to be a patent infringement.