The UK Government on its Digital Opportunity

August 26, 2011

By Sarah Lux 

Earlier this year, the Fortnightly Review reported on the Hargreaves Review and its recommendations for the reform of UK intellectual property law. The UK Government has now released its official response, announcing that it accepts all of the Review’s recommendations and aims to implement measures by the end of this Parliament to ‘realise the Review’s vision and deliver real value to the UK economy, and to the creators and users of Intellectual Property’.

Importance of Evidence

The Review emphasised the need for IP policy to be grounded in clear economic evidence of the impact of regulatory mechanisms on competition and innovation. Professor Hargreaves identified two main areas of concern: the lack of high-quality evidence to support some intellectual property measures and an overabundance of lobbying by private interest groups.

The Response begins with a set of promises geared towards ensuring that UK IP policy is informed by better evidence. In relation to the first concern, the Response notes that the Government has ‘begun an ambitious programme of economic research with partners’, referring readers to an outline of its proposed research. The outline includes plans to:

  • assess possible economic effects of congestion in the trade mark register;
  • study the economic value of public domain works;
  • develop an approach for measuring IP enforcement costs against the effects on rights owners, consumers and the wider economy;
  • link all IP rights to business performance measures;
  • assess the economic cost of invalid patents;
  • assess the volume of orphan works and their impact on creators and users; and
  • develop a methodology for research into economic and social impacts of copyright exceptions.

In relation to the second concern, the Response states that the Government will give limited weight in IP policy-making to evidence that is insufficiently open and transparent, and will make it clear when it is doing so.

However, the Response also states that perfect evidence is an ideal, and that in making IP policy it is sometimes necessary to ‘guess and get on with it’. Accordingly, while the Government will aim to be guided by ‘emerging evidence’, it will continue to prioritise ‘rapid progress’ towards an improved IP system.

Digital Copyright Exchange

The response to Professor Hargreaves’ proposed Digital Copyright Exchange (DCE) is that a DCE ‘has the potential to offer a more efficient marketplace for owners and purchasers of rights’ and that it could contribute up to £2.2 billion per year to the UK economy by 2020. The Government will therefore commission a ‘champion’ of the DCE to undertake preliminary steps towards its creation.  The DCE champion will report back on progress at the end of 2011.

However, the Response implies that the Government will give less weight to the DCE than was envisaged by Professor Hargreaves. Hargreaves recommended that a work which cannot be found after a diligent search of the DCE should be regarded as an orphan work and automatically licensed for use. The Government, on the other hand, regards DCE searches as only ‘a valuable first step’ in searching for the owner of a work, and notes the need for other diligent searches before a work can properly be treated as an orphan. The Government takes the view that compulsory participation in the DCE would be contrary to the Berne Convention.

Orphan Works

The Government intends to make proposals at the end of the year for an orphan works scheme incorporating the safeguards discussed above.

Copyright Exceptions

The Response agrees that greater exceptions to copyright are required in theUK. The Government intends to make proposals at the end of the year for ‘a substantial opening up of theUK’s copyright exceptions regime’.  This will include proposals for:

  • a limited private copying exception;
  • a widened non-commercial research exception (which should cover text and data-mining to the extent permissible under EU law);
  • a widened library archiving exception; and
  • a new exception for parody.

The Response adds that there is a need for wider exceptions at the EU level, since theUK’s scope for action on exceptions is limited. The Government will therefore ‘aim to secure further flexibilities’ at EU level.

Enforcement

Among other measures to improve enforcement, the Government intends to introduce a small claims track in the Patents County Court for cases with £5,000 or less at issue, for use in copyright, design and possibly trade mark cases, to increase access to enforcement by small and medium enterprises.

Patents, Designs and Trade Marks

These areas of intellectual property law received little focus in the Review, which dealt mainly with theUKcopyright regime. However, the Review did make some recommendations on patents and designs.

On patents, the Government undertakes to:

  • resist extensions of patents into sectors which are currently excluded, in the absence of clear evidence that this is necessary;
  • provide for work-sharing with other patent offices in order to address backlogs; and
  • investigate the scale and prevalence of issues with patent thickets as well as potential solutions.

On designs, the Response notes that the IPO has commissioned research on the relative levels of design registration in theUKcompared toFranceandGermanyand on whether theUK’s lower level of registration has impacts on the competitiveness of theUK. It also noted that designs might be included in the DCE or its equivalent.

International Policy and Crime Strategy

Alongside the Response, the Government has released The UK’s International Strategy for Intellectual Property, which outlines the role the UK envisages for itself in working towards an efficient, well-functioning international IP system, and The UK IP Crime Strategy 2011, which discusses the ways in which the UK will continue to enforce IP law domestically.

Conclusion

The Government’s response to the Hargreaves Review was one of resounding acceptance, at least at the level of principle. Despite the long road towards implementation that no doubt lies ahead of these Recommendations, the Government’s positive response increases the likelihood that the principles underpinning the Review, and its key findings, will be considered closely in the upcoming review of Australian copyright.

Sarah Lux is an intellectual property lawyer at Allens Arthur Robinson and an Adjunct Lecturer at the University of New South Wales.

(return to the top of this edition)

Leave a Comment » | Copyright, Intellectual Property, Internet, piracy, Uncategorized | Tagged: , , , , , , , | Permalink
Posted by clarissaterry

Update on the Federal Government’s Convergence Review

August 26, 2011

By Elisabeth K. Cooke

The Department of Broadband, Communications and the Digital Economy is in the process of completing a convergence review of the media and communications laws and regulatory frameworks that apply withinAustralia. The convergence review has stimulated a tremendous debate across the industry.

As older media and communications technologies converge on the Internet, the Convergence Review was formed to examine the changes effected on consumers, business and government and propose new regulations for the digital landscape.

Upon release of the Framing Paper in June 2011, the Convergence review received 72 submissions addressing the eight principles and policy concerns raised by the Convergence Review Framing Paper. The submissions detailed overwhelming support for the review and in depth discussion and feedback on the eight principles and corresponding policy issues addressed in the Framing Paper. Many submissions included other principles and issues that should be considered by the Review Committee.

The eight principles listed in the framing paper broadly addresses: diversity and competition, local and Australian content, community standards, consumer and citizens rights and spectrum allocation. While these principles read like a wish list in a newly converged environment, they raise significant challenges and difficulties. For instance, Principle 5 states that:

‘Communications and media services available to Australians should reflect community standards and the views and expectations of the Australian public’.

However, within such a diverse nation, the fundamental step of defining whose ‘community standard’ is to be the measuring stick in assessing the ‘Australian public’ is absent.

Lawmakers will likely face significant challenges when drafting regulations to fit across all platforms in a converged environment. Complicating the review process even more, these new regulations must be able to anticipate future technological advancements within an industry that has the potential to change dramatically overnight. Social networking raises its head once again, blurring the line between the consumer and creator, further complicating a new regulatory scheme.

However, the difficulties with the convergence review do not stop with technological challenges. The review itself will not address copyright law, classification law, competition issues regarding the National Broadband Network, comparative international approaches orAustralia’s international obligations.

While the Convergence Review is a welcome opportunity to update media and communications law to reflect current technologies and strengthen an industry, the results may not be quite so simple.

The Convergence Review can be followed on the Department of Broadband, Communications and the Digital Economy website, and on twitter.

Elisabeth Cooke recently received a JD from the Melbourne Law School and works for the Centre for Media and Communications Law

(return to the top of this edition)

Leave a Comment » | Copyright, Internet Law, Media law, Trade Mark | Tagged: , , , , , , | Permalink
Posted by clarissaterry

In this edition #30…

July 29, 2011

A hugely influential English magazine published between 1865 and 1954, our namesake the original Fortnightly Review was a progressive, sometimes partisan, but highly distinguished organ, whose contributors included nigh every renowned English author or critic of the time. Famous as much for its schismatic renunciation of authorial anonymity as its highbrow and panoramic content, the Fortnightly fortified the careers of numerous lettered figures including some giants of 19th and 20th century literature. Our earnest hope was that our humble derivative, the Fortnightly Review of IP and Media Law, would follow the same traditions of superlative contributions with incalculable benefit to the careers of its authors. For that and other reasons, in our introduction we explicitly referenced our august progenitor.

And like our progenitor, who published fortnightly for one year then found monthly editions a more suitable configuration, we too have extended the period of anticipation between issues to four weeks. We hope you’ll forgive our seemingly retrograde strategy in a time where technological speed is obsession, in exchange for greater contemplation of issues with more than mere fortnightly currency. With that, we present edition #30…

- The Editors

In this edition #30…

Megan Richardson addresses the recent political discussion on introducing a statutory privacy cause of action with reference to the recent Murdoch empire ‘phone-hacking’ scandal.

For full article click here.

And David Brennan brings a new angle on the international intellectual property debate surrounding Australia’s tobacco plain packaging proposal to our attention, a possible non-violation complaint under the Australia-US Free Trade Agreement.

For full article click here.

Leave a Comment » | Uncategorized | Permalink
Posted by clarissaterry

Phone hacking and privacy torts

July 29, 2011

By Megan Richardson

Who before last week would have predicted there would be serious talk of a statutory privacy tort in Australia with politicians coming out openly in support of it?  But then who would have predicted a phone hacking scandal engulfing the Murdoch press?

The Australian’s senior legal writer Chris Merritt last weekend dismissed the connection saying we have criminal law to deal with phone hacking plus defamation and other laws to protect individuals, and questioning the need for a privacy tort – especially one as draconian in its treatment of the Australian media as that recommended by the Australian Law Reform Commission. What this discussion sidesteps, as much of the discussion I have read to date in the press, is that we already have common law protection of privacy fashioned through case law, which does or should constrain the media.

A problem, I think, is that our main source of common law protection goes by the antiquated name of ‘breach of confidence’. This gives the false impression of a confider and confidant. In reality the compass is far broader – and the doctrine is really one of misuse of confidential information, including information of a private character. In the defence papers case Commonwealth v John Fairfax Mason J referred to breach of confidence as a doctrine restraining ‘the publication of confidential information improperly or surreptitiously obtained’, citing Swinfen Eady LJ in Lord Ashburton v Pape (1913) 2 Ch 469. More recently, in the possum abattoir case Australian Broadcasting Corporation v Lenah Game Meats, Gleeson CJ quoted Laws J in Hellewell v Chief Constable of Derbyshire [1995] 1 WLR 804 at 807 as saying:

If someone with a telephoto lens were to take from a distance and with no authority a picture of another engaged in some private act, his subsequent disclosure of the photograph would, in my judgment, as surely amount to a breach of confidence as if he had found or stolen a letter or diary in which the act was recounted and proceeded to publish it. In such a case, the law would protect what might reasonably be called a right of privacy, although the name accorded to the cause of action would be breach of confidence. It is, of course, elementary that, in all such cases, a defence based on the public interest would be available.

Gleeson CJ agreed with that proposition, adding that to adapt it to the Australian context account should also be taken of the freedom of political communication which the High Court has held implicit in the democratic principles of the Australian Constitution. This suggests that the defence is particularly stringent where that implied freedom applies.

Lenah itself was a surreptitious filming case. Animal rights activists secretly entered the game meat abattoir’s property to film its possum slaughter processes then handed the film (through an intermediary) to the ABC who proposed to show on its 7.30 Report. Lenah sought an interlocutory injunction to stop this but did not claim breach of confidence, conceding rather that the information as to its animal slaughter methods was not confidential. Instead it argued the High Court should recognise a new tort of privacy to cover their case. Gleeson CJ said that breach of confidence would have been adequate to cover the case if ‘the activities filmed were private’. Even if so, the Chief Justice’s references to the public interest defence and constitutional freedom of communication suggests the ABC might have had a good defence. As Kirby J pointed out in his judgment, this was a government licensed abattoir and the public is entitled to know that the government is concerned to ensure that animals at the abattoir are being treated humanely (so far as an abattoir designed to kill animals can do so). The Australian government’s recent action over live meats exports shows it accepts this responsibility, and the ABC’s role in uncovering the problems there is worth noting and preserving.

We only need to imagine a slightly different fact situation to see Lenah as a strong authority on breach of confidence’s protection of privacy. Although some judges in the High Court questioned whether a corporation concerned about its public reputation was the best privacy claimant (Gummow and Hayne JJ especially), it was clear that the situation would have been different if the claimant had been an individual filmed or photographed while engaged in a private activity. For instance, Gleeson CJ said, ‘a film of a man in his underpants in his bedroom would ordinarily have the necessary quality of privacy to warrant the application of the law of breach of confidence’ – as would ‘information relating to health, personal relationships, or finances’. If the information was surreptitiously or otherwise improperly obtained, there is a good argument that its publication could be restrained or a remedy granted after the fact on the basis of breach of confidence, unless a public interest could be shown to justify the publication.

These are not just hypothetical scenarios that could never arise in Australia. In fact, the prospect of an improperly obtained video recording of a man in his underpants being aired on Australian television was very real in Donnelly v Amalgamated Television Services, where an interlocutory injunction was obtained (although, as often occurs in cases where other grounds are available, breach of confidence as such was not relied on). Lara Bingle’s objection to publication of the infamous shower picture in Woman’s Day is one example and in my view she had a potential claim that might have succeeded if she had chosen to pursue her action. Certainly, there are English cases where confidentiality claims against the media have succeeded involving weaker arguments of privacy and stronger arguments of free speech than were apparent in the Bingle scenario.

That many of those English cases have arisen in the wake of the Human Rights Act 1998 makes their authority in the Australian context more debatable. The Act brings into English law the European Convention on Human Rights, including the right to privacy in Article 8 along with the right to free speech in Article 10, and gives English courts the responsibility to develop its law in accordance with those rights. Perhaps it may be argued that the absence of an equivalent Bill of Rights at the Australian level means that privacy is not, or need not be, so highly valued here. But can this be said of private phone hacking? I would think many Australians would consider this a breach of their privacy.

And it would likely be a breach of confidence as well. Well before the Human Rights Act, the English case of Francome v Mirror Group Newspapers Ltd (1984) 2 ALL ER 408 concerned an illegal ‘bug’ placed on the jockey John Francome’s private telephone line. The tapes had been offered for sale to the Daily Mirror whose reporters approached Francome to confirm their authenticity. Francome and his wife promptly brought an action in breach of confidence seeking an interlocutory injunction to stop its publication of the transcripts, or extracts. The defendants denied liability and argued, alternatively, that publication was justified in the public interest as exposing Francome’s breaches of racing rules. Thus, they said, the balance of convenience lay in their favour, so the injunction should not be granted. However, the Court of Appeal held that the unlawful telephone tap was improper obtaining, the newspaper which had notice of the wrongdoing would also be liable as a third party for breach of confidence if it went ahead with its publication, and the public interest did not justify this since the tapes could have been given to the police or jockey club to deal with through official channels. Surely this case shows that in Australia as well as the United Kingdom unlawful telephone tapping by the media would be a prima facie breach of confidence, and that given the unlawfulness of the conduct the burden on the media to show the public interest supports its action is very high – although a court might allow an argument that there is good ground to suspect misconduct and the police could not be left to handle the investigation.

But to revert to my earlier point, the significance of breach of confidence in cases such as Francome is not widely known. In answer, then, to the question of whether there would be any advantage in a new statutory tort of privacy, I suggest transparency is one. If even The Australian’s senior legal reporter does not refer to breach of confidence what is the rest of Australia’s population to make of their legal rights in the (hopefully unlikely) scenario they find their telephones tapped for media reporting on some current story?

That said, there may be better ways to acknowledge the importance of freedom of speech and the media than in the Australian Law Reform Commission’s proposed statutory tort (where it is a matter to be ‘taken into account’ in a court’s determination of invasion of privacy). I was part of an expert group of the New South Wales Law Reform Commission whose proposed statutory cause of action for invasion of privacy tries to give more explicit account to freedom of speech and the media. The Victorian Law Reform Commission in its recent proposal for a cause of action for misuse of private information has gone further still, providing a full public interest defence. To me that seems the best approach to date. As Michael Kirby was quoted in an article in last weekend’s Australian, privacy may be a human right but so equally is freedom of speech and the media. Rather than giving either automatic precedence both should be acknowledged in any privacy cause of action and if need be they should be ‘reconciled’ in cases.

So, in the end, the judge’s central role in deciding privacy cases seems inescapable. In other words, we rely on the media to report freely but in cases where media seems too intrusive of individual privacy we should trust judges to exercise appropriate oversight.

Megan Richardson is a professor at the Melbourne Law School

An edited version of this piece has featured at theconversation.edu.au

(return to the top of this edition)

Leave a Comment » | Bingle, breach of confidence, defamation, Media law, privacy, Uncategorized | Tagged: , , , , , , , , , , , , , , | Permalink
Posted by clarissaterry

Could plain tobacco packaging laws ground a non-violation complaint under the Australia-US FTA?

July 29, 2011

By David Brennan

In the debate surrounding the Commonwealth’s proposed plain tobacco packaging laws an aspect of Australia’s international intellectual property obligations, aside from those set out in World Trade Organization (WTO) rules, has not been addressed. That aspect is the possibility of a non‐violation complaint by the US against Australia under the Australia-US Free Trade Agreement (FTA).

A non‐violation complaint occurs when, because of the application of a measure which in itself does not violate a minimum standard set by a trade agreement, the measure nevertheless causes the nullification or impairment of a benefit that a party reasonably expects should arise from the agreement.

In this instance a minimum standard article found in Chapter Seventeen of the FTA – Intellectual Property Rights – requires that parties confer upon trade mark owners certain exclusive rights in relation to their marks. The article reads in part that ‘[e]ach Party shall provide that the owner of a registered mark shall have the exclusive right to prevent all third parties not having the owner’s consent from using in the course of trade identical or similar signs.’

This minimum standard is not violated by plain packaging laws if one accepts the logic that the standard merely requires the creation of a negative right (a right to exclude), and that plain packaging laws are not inconsistent with that requirement. This is because, under that logic, the laws simply deny affected trade mark owners a positive entitlement to themselves use certain of their registered trade marks in typical ways, but does not remove their right to prevent third parties from using those trade marks. This is a key point made by Mark Davison, a plain packaging enthusiast, in arguing that such laws do not violate WTO rules.

However a dispute settlement article in Chapter 21 of the FTA raises the minimum standard in an important way, by creating the possibility of a non-violation complaint. It states that ‘except as otherwise provided in this Agreement or as the Parties otherwise agree’ the dispute settlement regime of the FTA applies when a Party considers that ‘a benefit the Party could reasonably have expected to accrue to it under … [Chapter Seventeen – Intellectual Property Rights] is being nullified or impaired as a result of a measure that is not inconsistent with this Agreement.’

This creates the possibility of a non‐violation complaint by the US against Australia on the basis that plain packaging laws deny a reasonably expected benefit to US trade mark owners. In this respect the US might also argue the plain packaging measure should be considered in conjunction with another measure: State and Territory law banning of the display of tobacco products at point of retail sale. Together, the measures might be argued to cause heightened impairment or nullification of a reasonably expected benefit to US tobacco trade mark owners.

How would the US identify a reasonably expected benefit, arising from the FTA minimum standard of requiring a right in owners to prevent others from using their marks in trade? It might be identified as the benefit described by Frank Schechter in his 1927 Harvard Law Review article, “The Rational Basis of Trademark Protection”. Schechter there explained: ‘The fact that through his trademark the manufacturer or importer may reach over the shoulder of the retailer and across the latter’s counter straight to the consumer cannot be over-emphasized, for therein lies the key to any effective scheme of trademark protection. To describe a trademark merely as a symbol of good will, without recognizing in it an agency for the actual creation and perpetuation of good will, ignores the most potent aspect of the nature of a trademark and that phase most in need of protection.’

Importantly, a non-violation complaint assumes that the measure in issue is not inconsistent with the FTA. That is to say such a complaint could be made even with the US accepting the argument that a measure denying an owner use of its mark does not violate a FTA minimum standard guaranteeing the trade mark owner a right to exclude others from using its mark.

In relation to ‘except as otherwise provided in this Agreement’ in the FTA dispute settlement article, it should be pointed out that exceptions for measures such as those ‘necessary to protect human, animal or plant life or health’ are not expressly incorporated to apply to Chapter Seventeen – Intellectual Property Rights. However, the FTA dispute settlement article recognizes that the parties may ‘otherwise agree’ in relation to a measure such as the plain packaging mandate. Unlike the position under bilateral investment treaties, private parties cannot bring a complaint under the FTA, only the countries party to the agreement are competent to take action. Would the US bring a non-violation FTA complaint against Australia about the plain packaging laws? Of course I do not know. Recently the US Food and Drug Administration (FDA) has prescribed (commencing in September 2012) the types of graphic health warnings on tobacco packaging that Australia adopted long ago. These must appear on the top 50 percent of both the front and rear panels of each cigarette package distributed in the US, however the FDA regulations do not mandate plain labelling for the remaining branded portion of the package. At the same time seven US peak commerce bodies – including the US Chamber of Commerce – have expressed joint opposition to Australia’s proposed plain packaging laws, while at the same time recognizing Australia’s right to regulate more fundamental control over the supply of tobacco products.

I conclude with a couple of riders.

Non‐violation complaints are regarded by many (albeit not the US) as being ill‐suited to intellectual property minimum trade standards; this controversy has been responsible for the moratorium on such complaints under WTO rules.

While I am an intellectual property enthusiast, I am personally opposed to the tobacco trade.  I favour the suggestion made last year to ban the supply of tobacco to individuals born in or after the year 2000.

David Brennan in an Associate Professor at the Melbourne Law School

(return to the top of this edition)

Leave a Comment » | economics, Intellectual Property, Trade Mark, Uncategorized | Tagged: , , , , , , , | Permalink
Posted by clarissaterry

In this edition #29

June 30, 2011

Melissa de Zwart gives another example of the conflict between social media and the judicial system, with a juror and defendant in a UK High Court case both being found guilty of contempt of court for illicitly communicating with Facebook.

For full article click here.

And Dr Simon Longstaff and Jake Goldenfein write from two angles about the recent Intelligence Squared debate in Sydney, questioning whether ‘WikiLeaks is a force for good?’

For full article click here.

Finally, Paul Jensen and Beth Webster have responded to David Brennan’s article in the previous edition concerning the economic arguments behind the assessment of damages for on-line copyright infringement.

Leave a Comment » | Uncategorized | Permalink
Posted by clarissaterry

Facebook contempt of court derails UK drug case

June 30, 2011

By Dr Melissa de Zwart

A major drug trial had to be abandoned and a juror and an (acquitted) defendant found guilty of contempt of court in the UK High Court, following contact between the juror and defendant on Facebook. This was the first prosecution for internet related contempt in the UK. The juror, Joanna Fraill, a 40 year old mother of three, created a Facebook profile called ‘Jo Smilie’, which clearly showed her image. She then used that profile to make contact with the defendant in the drug trial, Jamie Sewart, (34) who had been acquitted of conspiracy charges that day. The contact was made while the jury was still deliberating on other charges.

The complex multi-million pound trial, being heard in Manchester, had involved multiple defendants and charges and was one of a series of four trials. The high profile contempt proceedings came at a time of increased attention by the judiciary in the UK (and Australia) to issues related to jury members accessing the internet for information and attracted the personal involvement of the UK Attorney-General, Dominic Grieve. The case illustrates not only the allure of using the internet for research, but in particular the deceptive sense of privacy and intimacy created by social networking sites, such as Facebook.

Transcript evidence

A transcript of the Facebook chat, which took place in August 2010, has been made available by The Guardian. That transcript shows that Sewart clearly knew that ‘Smilie’ was a juror and asked her: ‘what’s happening with the other charge??’. ‘Smilie’ had asked her to clarify the question, but then went on to post a little later ‘don’t worry about that chge no way it can stay hung for me lol th’. Smilie was also clearly aware of the risk she was running, posting: ‘cant get anywaone to go either no one budging pleeeeeese don’t say anything cause jamie they could call mmiss trial and I will get 4cked too’.  Sewart reassures her: ‘I know I have deleted all the messages I wudnt do that to u don’t worry xx’. The pair also discuss nods, blinks and smiles that Smilie had been sending to Sewart in the courtroom (although Sewart seems to have been unaware that they were meant for her). Sewart later says that they should keep in touch and that she would get Smilie ‘a nice pressie’ if she got anything ‘out of um’, presumably the ‘compo’ she said she would be applying for. At the heart of the exchange is the sense that Smilie wants to show her empathy with Sewart and to explain that she had felt that she had shared the experience with Sewart, noting that she had laughed and cried along with her during the trial.

Despite her assurances to Smilie, Sewart told her lawyer about the Facebook exchange the next day. This resulted in the seizure of her computer and the bringing of the contempt charges. The jury was discharged and the case collapsed.

Both Fraill and Sewart were found guilty of contempt of court in June 2011. Fraill admitted that she had contacted Sewart, claiming that she had been motivated by her joy that Sewart had been acquitted of the charge of conspiracy to supply drugs, after being on remand for fourteen months and separated from her young child, and because she had felt that there were ‘considerable parallels’ between the womens’ lives which made her feel empathetic to Sewart’s plight. Fraill also admitted to having conducted internet searches on Gary Knox, Sewart’s partner and co-defendant in the trial.

Gary Knox, a defendant who was convicted in the original drugs trial and jailed for six years on charges related to paying a police officer to disclose information relating to drug dealer has also applied to have his conviction overturned on the basis of alleged jury misconduct.

The case was heard by the Lord Chief Justice, Lord Judge, Ouseley and Holyrode JJ.

Sentence and observations

Fraill was sentenced to eight months in jail for the contempt. Seward was sentenced to two months, suspended for a period of two years. The contempt action was conducted personally by the Solicitor- General, Edward Garnier QC, who stated that the case was necessary to protect jury integrity. After the trial, Garnier stated that: ‘Jurors should take careful note and know that the law officers will prosecute those who commit contempt.’ He continued:

‘The jury system is a cornerstone of our society and confidence in this vital part of our criminal justice system will crumble if jurors do not take their responsibilities seriously.’

The written ruling of Lord Judge stated: ‘Her [Fraill’s] conduct in visiting the internet repeatedly was directly contrary to her oath as a juror. And her contact with the acquitted defendant, as well as her repeated searches on the internet, constituted flagrant breaches of the orders made by the judge for the proper conduct of the trial.’ The messages exchanged between Fraill and Sewart ‘went much further than the expression of a compassionate concern’. The ruling warned that any similar action by a juror would result in a custodial sentence, such punishments being necessary to maintain faith in the integrity of the jury system. [sky.news.com.au]

In November 2010, Lord Judge had presented a paper to the Judicial Studies Board warning of the prospect of jail sentences for jurors engaging in internet research. He highlighted the risks posed to the jury system by jurors using the internet to search for further information on matters related to the trial. He stated: ‘I do believe that if it is not addressed, the misuse of the internet represents a threat to the jury system, which depends, and rightly depends, on evidence provided in court which the defendant can hear and if necessary challenge. He is not to be convicted on the basis of material which from his point of view is secret material – not only secret material, which is bad enough, but material which may be inaccurate and could also be false.’

Lord Judge concluded: ‘if the jury system is to survive as the system for a fair trial in which we all believe and support, the misuse of the internet by jurors must stop. And I think we must spell this out to them …  yet more clearly. It must be provided in the information received by every potential juror. It must be reflected in the video which jurors see before they start a trial. Judges must continue to direct juries in unequivocal terms from the very outset of the trial. And I should like the notice in jury rooms which identifies potential contempt of court arising from discussions outside the jury room of their debates, to be extended to any form of reference to the internet.’

Facebook ‘friends’

One of the interesting issues raised by this trial, is not so much that Fraill was tempted to discuss the case on Facebook, but rather what Jenny McCartney writing in The Telegraph described as the ‘illusion of intimacy’ displayed in the transcript of the chat. Fraill clearly wanted to be identified by Seward as a friend and ally. Although she had used the internet to search for information on Knox, it appears that she was mainly interested in getting some acknowledgment from Seward that they shared a special bond. Although she had been signalling to Seward in court, it was by no means clear that the signals had been received by Seward. In the same way that for example, fans of a popular musician or actor can gain a sense of contact through receiving a message via Facebook, Fraill sought some affirmation from Seward. This sort of contact would not have been possible in pre-Facebook modes of contact and represents a unique aspect of social network communication. This is an extension of the general problem of jurors being tempted to conduct their online ‘research’ during trials. It is now necessary for jury instructions to specifically prohibit using any internet enabled device to conduct research or to communicate with anyone regarding the case. Whilst this may appear to be common sense, experience suggests that we are still learning how to use Facebook and social networking sites appropriately.

Dr Melissa de Zwart is an Associate Professor in Law at the University of Adeliade.

(return to the top of this edition)

Leave a Comment » | facebook, Internet, law, Twitter | Tagged: , , , , , , , , | Permalink
Posted by clarissaterry

WikiLeaks is a force for good?

June 30, 2011

I was recently invited to attend the Intelligence Squared debate asking whether ‘WikiLeaks was a force for good?’ and contribute a small article about the debate for the organiser’s newsletter (the St James Ethics Centre). The article was to be a legal companion to the article contemplating the ethical aspects of WikiLeaks by Dr Simon Longstaff, Executive Director of the St James Ethics Centre and Chair of the Intelligence Squared Australia debates. At the debate, this polemical issue provoked a tempestuous dispute by extremely gifted speakers including: Dr Suelette Dreyfus (author of ‘Underground’), Kristinn Hrafnsson (current spokesman for WikiLeaks), and Professor Stuart Rees (Emeritus Professor at Sydney University and Director of Sydney Peace Foundation) for the positive; and Gareth Evans (former Foreign Minister), Tom Switzer (political writer, editor, adviser and lecturer), and Dr Michael Fullilove (Director of the Global Issues Program at the Lowy Institute) for the negative. Interestingly, the poll results from before and after the debate suggest that while those believing WikiLeaks is a force for good remained undeterred, those undecided before the debate were markedly influenced against the proposition by the end. The precise results, as well as the audio of the debate are available from the IQ2 website.  – Jake Goldenfein

 

WikiLeaks is a Force for Good

By Dr Simon Longstaff

Speaking at the 25th Asia Pacific Roundtable in Kuala Lumpur in June 2011 Rowan Callick (The Australian) quoted Australia’s Ambassador to the United States, Kim Beazley who stated “[WikiLeaks is] like American foreign policy being neutron bombed” – the implication being that while the infrastructure of the US State Department survives, the people within the edifice have been badly damaged. Beazley’s analogy is, at the very least, striking. It is also at the more extreme end of the rhetorical scale employed by WikiLeaks’ critics. The core of Kim Beazley’s argument, however, is shared by many members of the diplomatic community. Their chief complaint is that WikiLeaks has undermined a fundamental precursor for the conduct of diplomacy – the maintenance of confidentiality of communications. The argument goes that, without a guarantee of confidentiality, the otherwise essential exchange of information will be curtailed for fear of exposure. Given that effective diplomacy can prevent or resolve conflicts capable of destroying the lives of innocent people, it is further posited that WikiLeaks is a significant source of harm – and not just a minor inconvenience.

It should be noted that this argument does not rely on the claim that WikiLeaks’ release of cables caused serious harm to those named in the published cables. Appearing before Congress, US Secretary of Defense. Robert Gates, testified that no damage had been done to active operations and that no American life had been put at risk by the activities of WikiLeaks. The fate of those who provided information to US officials, however, may not have been so benign – especially if operating under oppressive regimes in countries where even a modest degree of candour can have dire consequences for the individuals concerned.

At face value the criticism mounted by Beazley and those of like mind would seem to have merit. After all, who would deny that effective diplomacy is an important public good. It is less clear, however, that WikiLeaks acted in a manner to undermine the preconditions for diplomacy. For example, although diplomats require some matters to be kept secret, it does not follow that all matters they claim require secrecy should be accorded this same condition. The scope of the Official Secrets Act in Britain was once so expansive that it included the House of Commons’ dining room menu. No reasonable person would assume secrecy requirements for such details. In fact, much included in the trove of diplomatic cables released by WikiLeaks was mundane. Indeed, the level of American security accorded to the cables was relatively low – with access granted to several million people connected to the Secret Internet Protocol Router Network SIPRNet used to share information in the ‘war on terror’. It is unlikely the United States government would have granted such extensive access if it had considered the cables contained highly sensitive information.

The other point worth noting about the contentious releases is that WikiLeaks subjected itself to external review by agreeing that the editors of mainstream news outlets should vet the material in order to remove any information judged to be genuinely sensitive, This is an important point. In the case of the US cables, at least, WikiLeaks was prepared to accept the judgement of editors who society routinely trusts to be prudent and responsible when determining what should or should not be published. The editors involved in handling the sensitive diplomatic material have been explicit about their determination to exclude material that would have caused risk, rather than mere embarrassment, to others.

As most commentators have noted, the debate about WikiLeaks is about much more than the particular case of how the US diplomatic cables were handled. The larger question concerns the extent to which society should have access to public information that is relevant to its interests. There is a significant difference, however, between what is in the public interest and what the public happens to be interested in – a distinction not always applied by the media. Governments often claim to be guardians of the public interest. They claim a corresponding right to decide what the public should know – and when we should know it. It is also clear, however, that governments will often make decisions in line with personal or political interests – interests that are not always aligned with those of their citizens. Add to this the kind of caution that would include a dining room menu under an official secrets act and it soon becomes evident that it would be unwise to rely exclusively on the judgement of governments.

The vast majority of people recognise the importance of maintaining some measure of secrecy in their own lives. They also know governments must keep some matters secret, for example for reasons of national security. What WikiLeaks has prompted is a public discussion about where the balance should lie. The June 2011 Intelligence Squared debate which is now available at iq2oz.com pondered the proposition WikiLeaks is a force for good. Speakers for: Dr Suelette Dreyfus, Kristinn Hrafnsson, current spokesperson for WikiLeaks, Professor Stuart Rees. Speakers against: Gareth Evans, Dr Michael Fullilove, Tom Switzer.

Dr Simon Longstaff is Executive Director of St James Ethics Centre and Chair of Intelligence Squared Australia debates.

This article will also be published in the St James Ethics Centre Newsletter and at thepunch.com

 

WikiLeaks: legal status and political choices

By Jake Goldenfein

A survey of whether or not WikiLeaks is a force for good does not necessarily consider the legality of its actions. At this stage there is only indirect legal action against WikiLeaks. For example, many consider the accusations against Assange to be politically directed at the WikiLeaks organisation, and the severe incarceration of Bradley Manning, the source of a great deal of WikiLeaks material, surely has a deterrent motivation targeting potential leakers. Beyond that, neither WikiLeaks nor its activities are outlawed. A Grand Jury in the US is attempting to assemble a case against WikiLeaks for crimes under the Espionage Act, Computer Fraud and Abuse Act, and for conspiracy, however most commentators consider constitutional free speech protections to be a significant impediment to prosecution. But WikiLeaks legal status also reflects its ‘organisational status.’ That is to say, whether WikiLeaks is considered a journalistic organisation, a publishing organisation, or simply a source, affects which laws are relevant. The laws applicable to each category vary, and despite often being treated by mainstream media as simply a source of leaks, WikiLeaks is not being prosecuted as such, meaning it need only comply with laws relevant for journalists or publishers. American precedent such as the famous Pentagon Papers case suggests that the messy balance between the administration’s need for secrecy and the public’s right and need to know should enable the administration to function, subject to occasional disclosures to keep it honest. ‘The rare exceptions would require a combination of high likelihood, magnitude, and immediacy of harm to justify suppression,’ meaning there is a very high threshold to WikiLeaks prosecution under that doctrine.

It is difficult to assess whether WikiLeaks legal situation would be different if pursued under Australian law considering we have no express constitutional right to free speech (though we do have an implied right of political communication), and our whistle-blowing laws do not apply to the media at large. Commonwealth v John Fairfax and Sons (1980) 147 CLR 39 (‘Defence Papers Case’) and Attorney-General v Heinemann Publishers (1987) 8 NSWLR 341; (1988) 165 CLR 30 (‘Spycatcher’) are potentially relevant Australian cases indicating that under our law WikiLeaks may be exposed to a breach of confidence action, and the Fairfax case points out that copyright may also be relied upon where documents are copied. But prospects of success are not guaranteed and there are some important limitations and qualifications on liability (for instance the defence of fair dealing for purposes of news reporting vis-à-vis copyright, the need to demonstrate Australian public interests vis-à-vis breach of confidence). Of course assessments here will be very fact specific and we do not necessarily know all the relevant facts at this stage. Katy Barnett wrote a nice piece on ‘Spycatcher and Wikileaks’ in the January issue of the Fortnightly Review.

Despite its relatively stable legal status, WikiLeaks has certainly still come under attack from institutional actors. And those attacks, generally effected through privately owned intermediaries, expose some of the more concerning aspects of the new media environment in relation to freedom of the press. ‘Extra-legal’ actions (including denial of service cyber-attacks) by companies that control crucial aspects of cyber-infrastructure like Visa, Mastercard, Paypal, EveryDNS, and Amazon, betray a private-public partnership with dangerous censorship implications. Scholars like Yochai Benkler suggest these censorship actions would have been practically impossible under legal and constitutional frameworks.

After the original reaction to the ‘CableGate’ leaks, the rhetorical framing of WikiLeaks shifted away from a major threat to the peaceful world order towards a more realistic suggestion that it undermines the checks, balances and accountability established within traditional media organisations. Indeed, no significant harm (apart from embarrassment) to any diplomatic or military institution has yet been claimed as a consequence of the leaks, suggesting the established media and state institutions reacted primarily from a motivation of anxiety than actual danger. However, that anxiety could be valid, as WikiLeaks may have serious implications for traditional media models as well has profound consequences for nation states and democracy. For example, Professor John Keane from University of Sydney places WikiLeaks at the vanguard of the emerging ‘monitory democracy’ in which democracy has shifted away from simple ‘parliamentary democracy’ towards a form of democracy that includes the permanent scrutiny of power wherever it is exercised.

Therefore, if we take the starting position that WikiLeaks’ publication of materials (often in conjunction with mainstream media) is not clearly illegal (although not clearly legal either), and that the releases seem to have caused no real damage to date at least, then deciding whether or not WikiLeaks is a force for good requires the personal determination of whether we approve of WikiLeaks’ fundament and mission, an inherently political decision. On the whole do we consider the outcomes of WikiLeaks’ actions beneficial?

WikiLeaks’ neutron bomb effect described above by Dr Longstaff, may indeed curtail some exchange of information, however that itself is not determinative of whether the outcomes of WikiLeaks actions are positive or negative. Without doubt governments need secrecy for certain actions (for example effective diplomatic practice), however they also need sufficient trust from the citizenry to maintain that secrecy. Raimond Gaita recently said in a lecture at Melbourne Law School that the current political situation (for example the spin and misinformation) has led to an absence of the conditions of sober judgement and ultimately an incapacity for people to consent to their states’ actions. In that sense WikiLeaks is facilitating the information necessary for consensual governance. Another fundamental effect was described by Glenn Greenwald, who recently wrote that the republican ideal requires that governments are transparent and citizens are private, yet the past decade has seen a wholesale reversal of that ideal. WikiLeaks therefore stands as a subversion of that reversal, a goal that goes beyond embarrassing diplomats or bringing political pressure to end a senseless war. Finally, commentator Guy Rundel has argued WikiLeaks gives whistleblowers a new choice, a chance to avoid the decision between life and truth, with the outcome that pursuing honesty can result in a flourishing of life rather than a suicide mission. Perhaps these outcomes are worth diplomats being slightly more cautious in how they communicate, or perhaps not.

Jake Goldenfein is a PhD student at the Melbourne Law School

This article will also be published in the St James Ethics Centre Newsletter.

(return to the top of this edition)

Leave a Comment » | breach of confidence, Internet, Internet Law, Media law, privacy | Tagged: , , , , , , , , , , | Permalink
Posted by clarissaterry

In this edition #28

June 16, 2011

David Brennan analyses the economic arguments behind the assessment of damages for on-line copyright infringement, specifically whether infringements not leading to lost sales should be actionable, and the consequences of that belief for copyright doctrine.

And Sarah Lux provides an outline of the recent Hargreaves Review of UK Intellectual Property which considered whether extant copyright laws were having a detrimental effect on innovation and economic growth.

Leave a Comment » | Uncategorized | Permalink
Posted by clarissaterry

A reply to the sentiment that copyright infringement not resulting in lost sales is benign

June 16, 2011

By Assoc. Prof. David Brennan

A view is held (in both expert and non-expert circles) that unless an infringement of copyright causes proven lost sales, that infringement should not be actionable. Under the logic of this view, to award damages for infringements that do not cause proven lost sales would be vindicating intellectual property rights without triggering incentive effects.

In relation to the damages award in the now famous Larrikin v EMI litigation (comprising a notional usage price of 5% of APRA׀AMCOS royalties paid to the infringers) two of our economists Beth Webster and Paul Jensen have supplied this critique of the law – emphasis in the original:

The sales of ‘Kookaburra’ were not affected in any way shape or form by the success of ‘Down Under’.  Quite simply, Larrikin should not be due any damages at all.

It is worthwhile to think more about (in law and economics) the creation of property rights – including those rights’ remedial scope – for copyright subject matter. A fine vehicle to do this is infringing file-sharing.

Research undertaken at the University of Ballarat in April 2010 reveals something of the global extent of infringing file-sharing. The University’s Internet Commerce Security Laboratory (ICSL) – which is funded by the State Government of Victoria, IBM, Westpac, the Australian Federal Police and the University – was commissioned by Village Roadshow to measure the volume and nature of BitTorrent file-sharing global traffic. It estimated that 97.9% of files made available encoding non-pornographic content were clearly not authorised by the copyright owner. Under the BitTorrent system the term ‘seeders’ refers to people who have completed their download and then make the file available for others to download. That is to say, a seeder is a person who is making that content available online to the public. The ICSL produced a list of what was estimated to be the top 100 seeded files as at April 2010. The top 10 in that list were:

1. The Incredible Hulk[2008]DvDrip-aXXo97065494792.4447: 1,112,628

2. Indiana Jones And The Kingdom Of The Crystal Skull[2008]-aXXo: 1,029,695

3. College[2008]DvDrip-aXXo339166021846.017: 509,576

4. Sherlock Holmes (2009) DVDSCR XviD-MAX: 479,655

5. Avatar (2009) PROPER TS XviD-MAX889790305026.795: 332,665

6. Meet Dave[2008]DvDrip-aXXo: 311,894

7. Lady GaGa – The Fame Monster 2CDRip 2009 [Cov+2CD][Bubanee]: 308,117

8. The Andromeda Strain[2008]DvDrip-aXXo: 284,221

9. Shutter Island (2010) R5 DVDRip XviD-MAX851029283088.936: 282,628

10. 2012 (2009) R5 DVDRip XviD-MAX883775626338.402: 277,043

With this list it should be pointed out that a title like Avatar reappeared twice again in the top 100 list under different file names – i.e. Avatar 2009 DVDScr H264 AAC-SecretMyth (Kingdom-Release) 94,781 seeders and Avatar TS XviD-IMAGiNE(No Rars) 82,977 seeders.

It is commonly considered that unless an infringing file-sharer, but for infringing, would have paid for the relevant content then there is no harm to the copyright owner arising from the infringement. Consider these three published readers’ comments to Asher Moses’s essay-style article ‘Piracy – are we being conned?’ (Fairfax Media, 22 March 2011)

  • Why would they assume that an unpaid download is a lost sale? Kale – Sydney
  • The figures are obviously predicated on the presumption that each illegal download would convert into a legitimate purchase, which is a palpably fatuous assumption to make. The ghost of common sense - My bedroom
  • So are they counting every movie i have downlaoded then as lost revenue? cos i have a surpirse for you, you never were gong to get the money in the first place! [sic] Danny – Melbourne

The commonality of this sentiment is so pervasive that a survey-based analysis of direct loss to the film industry conducted in Australia by IPSOS Media CT and Oxford Economics for the Australian Federation Against Copyright Theft (AFACT) made explicit allowance for it. Deducted from ranks of loss-causing Australian infringers were those who would never have paid to watch the film. That is someone like Danny above. Danny might have unlawfully downloaded Avatar using BitTorrent, but never would have paid to obtain a copy. The AFACT-commissioned survey estimated that 23% of Australian infringers were in Danny’s boat, and so a 23% deduction was made in arriving at the final figure of $575m direct loss to the film industry for the 12 months Nov 2009-Sept 2010.

Is it correct, as our economists Beth and Paul say, that infringement not causing proven lost sales should yield zero damages? Or is it correct, as the Fairfax readers imply, that an infringing download not substituting for an actual purchase should be removed in the calculation of owner harm? And is it therefore correct to make that 23% deduction?  Or, to put it another way, is infringement not resulting in a proven material loss benign?

In economic analysis of copyright law as it applies to (say) the film industry, copyright is justifiable to the extent that it provides an effective promise to film producers and creators that if investment and risk is undertaken to make a film, some of the value that film generates is capable of market appropriation through the conferral of property rights. Avatar is a good case-in-point.  Would it have been created without the promise of copyright? It is difficult to imagine this type of content being produced through non-market means such as philanthropy or public funding. Market demand stimulates such content’s creation. In copyright, property rights in creative expression are deployed as an instrumental device to permit that market demand to induce productive endeavour. This is the incentive effect of intellectual property. It does not mean that those property rights per se generate economic value – the film could be an unmitigated box-office flop. Rather, the rights simply provide a way for a film copyright owner to capture some of the market demand for its film.

Given that copyright in economic theory is a promise of appropriability what, in private law, does that promise mean by taking the form of a property right?  Property as an owner’s right to exclude forges a special norm which governs relations between the owner of the property and users of the property. When relations are governed by a property norm violation by a user means that the owner receives less than the owner deserves, and that the user obtains more than the user deserves. Restitution scholarship regards this as an ‘expense’ to the owner mirroring a ‘gain’ to the user. The expense and the gain are de jure rather than de facto concepts. This restitutionary idea has been applied in intellectual property cases since as long ago as the 1867 patents decision of Penn v Jack where Page Wood VC assessed damages by asking: ‘What would have been the condition of the Plaintiff if the Defendants had acted properly, instead of acting improperly. That condition, if it can be ascertained, will, I apprehend, be the proper measure.’ Here, ‘acted properly’ meant to have paid a reasonable usage price for the use of the intellectual property.

Subsequent UK, US and Australian authority has assessed the lower-end quantum of monetary relief in copyright and patent cases to be the reasonable price for the use of the IP regardless of whether the particular defendant user would have agreed to pay. Indeed this approach is seen in the Larrikin v EMI case itself, where evidence was before the court that a lead member of Men at Work would have resisted paying anything for use of the Kookaburra copyright. But why should at least usage price damages be paid in the Larrikin v EMI litigation, and indeed by people such as Danny in the unlikely event that they are sued for downloading Avatar? For instrumental reasons society has promised the conferral of copyright property. That promise is one of appropriability which entails a particular norm governing relations between owners and users. Failure to at least award usage price damages (or recognise a legal entitlement to such a usage price) represents breach of that promise. It does so by creating the perverse situation of rewarding users who infringe rather than act lawfully. Moreover, why should anyone pay for the enjoyment of Avatar if the law accepts as benign the consumption of ‘you never were gong to get the money in the first place’ Danny?

Stripped away, the point made by the above economists and the Fairfax readers seems to resolve to a more fundamental matter of property delineation. The infringements of the 23% of users identified in the AFACT-commissioned survey should be removed from the copyright promise. That is, removed from the definition of property rights in copyright. Arguably, it presents us with this stunning new conception: copyright is the legal entitlement to exclude the whole world from the exercise of certain defined rights – except those people who would never have paid for the exercise of those rights.

David Brennan is an Associate Professor at the Melbourne Law School

(return to the top of this edition)

1 Comment | Copyright, damages, iiNet, Intellectual Property, Internet, Men at Work, piracy, Uncategorized | Tagged: , , , , , , | Permalink
Posted by clarissaterry

« Previous Entries
Next Entries »
Follow

Get every new post delivered to your Inbox.

Join 403 other followers