Evolving technology is changing the parameters and the definition of what copyright actually means. It's a challenging time for copyright lawyers, writes Michael Pollak
Copyright law is in an agonising transition phase as lawyers grapple with the shifting sands of global cyberspace and two major court decisions, the implications of which have yet to work their way through the system.
In April, the High Court ruled that IceTV (a Sydney-based provider of electronic program guides), was able to copy some elements of program listings from the Nine Network's total program listings without infringing copyright. This judgement put into question the copyright of such things as transport timetables, racing guides and directory listings. The court noted that for copyright to subsist in a compilation there might need to be "skill and judgement" or a "creative spark". Over the next few years the legal profession will need to work out what this means.
Meanwhile, the Federal Court in Sydney, in a case involving Perth-based internet service provider iiNet, is yet to rule on a submission by 34 applicants from the global film, TV and music industries (including giants such as Disney, Paramount and Twentieth Century Fox) on whether an ISP is liable for infringement of intellectual property by any of its subscribers.
These issues have melded into more traditional IP considerations which are becoming increasingly blurred in a borderless world.
Copyright law needs to recognise that in the digital age it is far easier and more convenient to copy things, according to Allens Arthur Robinson Sydney partner Andrew Wiseman.
"What needs to be determined is whether a copyright arrangement is compatible with our cut-and-paste digital culture, with consequences for such varied groups as consumers, websites, ISPs and original creators," Wiseman notes.
Wiseman - who has advised a range of clients from corporate start-ups to blue-chip Australian and international clients, universities and government instrumentalities - sees cases such as IceTV as representative of a transitional phase and warns that "there is a danger in extrapolating too far on what it means".
"The IceTV case has generated a lot of noise, but, at the end of the day, it turned on quite specific facts," he says. "IceTV conceded there was copyright in the work complained of, but claims that it didn't infringe the said copyright.
"There are interesting and continuing IP developments regarding compilations, but there needs to be care regarding the specific facts of each case. Where there have been infringements, the facts of the matter have been quite specific."
Wiseman - whose clients have included Sony Music, Sony/ATV Publishing, the Sydney Symphony Orchestra (SSO) and other entertainment businesses - sees his role not only as helping to protect IP rights but also to "exploit them efficiently and effectively".
In addition to piracy and parallel import issues over the years, Wiseman was involved in the early 1990s in the Sony/Michael Jackson landmark "bootleg" action that heralded a new era of performers' copyright introduced to Australian law as part of the TRIPS (Trade Related Aspects of Intellectual Property Rights) arrangements in 1994.
Wiseman's work with the SSO included assisting in its separation from the ABC and advising on a host of commercial arrangements the orchestra has with visiting musicians and conductors, composers and other parties.
The onset of new technologies is a cornerstone of Wiseman's interests, and he regards the ongoing iiNet cause célèbre as unlocking the problem of "how to deal with peer-to-peer sharing".
"The ISPs need to shoulder gateway responsibility, and they have an obligation to play a role that's clear and blatant," he says.
Highlighting the immediate uncertainty of IP is Mallesons Stephen Jaques Melbourne partner Natalie Hickey, who observes: "The next phase of copyright law hasn't happened yet. The biggest issues concerning copyright owners are a digital environment and a world without borders.
"Technology is creating a whole new world to consider, requiring new business models, and the areas of debate include online services like Amazon and electronic books like Kindle."
Hickey, who was on Telstra's legal team in the IceTV dispute, notes that in its judgement the High Court was evenly split, 3-3, "with different members of the court saying different things".
"Given that there's no majority decision, and copyright subsistence was conceded, I describe the decision as 'the start of a conversation' by the High Court on this area of the law," she says.
A tug-of-war of rights
The current uncertainties about copyright law make the iiNet and IceTV cases especially significant because all rulings are likely to be appealed, says Minter Ellison Melbourne partner Paul Zawa.
"People on all sides of the copyright debate are looking carefully at these decisions and IP concerns are feeding into different areas of law like mergers and acquisitions and related due diligence," Zawa says.
Zawa believes that copyright is too often a neglected component of IP and is not treated with the same importance as more tangible elements such as patents, trademarks, designs and a company's confidential information.
In ongoing matters, Zawa advises on licensing disputes and measures to protect copyright in all nooks and crannies, including against counterfeiters.
Wiseman likens the current copyright debate to a tug-of-war between those protecting their IP rights and those seeking freedom of use.
On one side of the IceTV case is the EPG provider claiming it is using only "slivers" of the Nine Network's content; and on the other is Nine, which claims that Ice is illegitimately drawing upon its "literary work" - namely its TV schedule.
As for iiNet, Wiseman believes the case is at the centre of "the next instalment in aligning digital culture and copyright" and is part of an evolution in which "it is unrealistic to expect rights owners simply to abandon their catalogues".
"We should expect rights owners to respond to piracy," Wiseman says.
Intellectual property's broad church
Putting the current imbroglio into a historical context, Wiseman observes that for centuries copyright has generally been "flexible and malleable" in responding to technological progress.
Hickey, who has acted for a variety of clients including in a "fair dealing" case about the use of sport footage online and on mobile phones, envisages an increasing flow of litigation from copyright owners seeking to explore where their rights are in terms of the internet.
"My client base is a broad church," she says. "My copyright matters have involved things as diverse as the National Rugby League's television footage, the ownership of photographs, telephone directories, and the house plans of property developers."
Over the next few years more and more parties will join the fray to slug it out to determine exact definitions of copyright in our constantly changing world.