IP law headed for legal barneys

10/02/2004 Written by Karen Dearne

THE “Mickey Mouse” exten­sion to copy­right and poten­tial ISP lia­bil­ity for infringe­ments are key con­cerns in a gen­er­ally good out­come for IT, local play­ers say.

Indus­try groups expressed cau­tion, say­ing they needed to see more detail before embrac­ing the Free Trade Agreement.

Most con­tentious is the so-​called “har­mon­i­sa­tion” of Australia’s intel­lec­tual prop­erty laws to allow stronger pro­tec­tion and enforce­ment of largely US-​owned IP rights.

This includes the exten­sion of copy­right — dubbed the Mickey Mouse clause when US Con­gress amended the law to pre­vent the Dis­ney char­ac­ter pass­ing into the pub­lic domain — and “align­ment” with the tough US Dig­i­tal Mil­len­nium Copy­right Act.

Under the DMCA, ISPs are held liable for user infringe­ments of copy­right mate­r­ial, and copy­right own­ers can force removal of con­tent by serv­ing take-​down notices on providers.



The way the DMCA has worked in prac­tice “is not nec­es­sar­ily a role model for the rest of the world”, said Peter Coro­neos, chief exec­u­tive of the Inter­net Indus­try Asso­ci­a­tion.

“It has resulted in a lot of lit­i­ga­tion, with dis­clo­sures of cus­tomer infor­ma­tion in some cases where peo­ple sub­se­quently turned out not to be infringers,” he said.

“We would have con­cerns about using a sys­tem that took away from us the right to man­age these issues at an indus­try level through codes of prac­tice.”

Mr Coro­neos said the IIA was con­cerned also by the appar­ent threat to the caching exemp­tion for ISPs.

“Caching has become intrin­sic to ISP oper­a­tions in Aus­tralia,” he said.

“We fought very hard for recog­ni­tion that ISPs are not ben­e­fit­ing from the con­tent.

“The sit­u­a­tion in Amer­ica is very dif­fer­ent, because much of the con­tent is hosted in Amer­ica. Obvi­ously, ISPs here don’t want to have to drag stuff across telecom­mu­ni­ca­tions cables every time there’s a new request to access the same mate­r­ial.”

Sub­ject­ing caching to mon­i­tor­ing and removal orders would threaten its via­bil­ity, push­ing down inter­net speeds and push­ing up down­load costs for local inter­net users.

Mr Coro­neos said that over­all, how­ever, the IIA was pleased the agree­ment had been reached.

“We are con­fi­dent our rela­tion­ship with the Fed­eral Gov­ern­ment remain strong enough to work through our con­cerns in the com­ing months,” he said. Mean­while, Aus­tralian Infor­ma­tion Indus­try Asso­ci­a­tion chief exec­u­tive Rob Durie said the AIIA was “broadly com­fort­able”.

“Our quick take is that the FTA looks pretty pos­i­tive for the IT indus­try,” he said.

“In par­tic­u­lar we wel­come the access it will pro­vide to the US gov­ern­ment mar­ket.

“It also seems we have been able to retain our min­i­mum par­tic­i­pa­tion pro­vi­sions that ensure SMEs get access to local gov­ern­ment con­tracts.

“Basi­cally, we don’t appear to have traded any­thing off.”