[1] The phrase digital domain is used in this paper to refer to the phenomena of this era that most forms of information and content, apart from those that are demonstrably physical, can be represented in digital code.
[2] Ian McDonald, "Digital publishing and copying: issues for authors and publishers" at 87
[3] John Perry Barlow, The Economy of Ideas; Lewis Lee & J Scott Davidson, Intellectual Property for the Internet at 77
[4] Robyn Coyle, "Copyright & Cyberspace - Divergent Notions"
[5] Virtual reality has been described by some as an interactive world or a "consensual hallucination" - Nick Weston, "Copyright and Virtual Reality Technology: A Bandaid on the Bleeding Edge" at 72
[6] Antonio Mille, "Copyright in the Cyberspace Era" at 570
[7] above
[8] Dr Andrew Christie, "Towards a new Copyright for the New Information Age" at 146; see also Copyright Convergence Group, Highways to Change - Copyright in the new communications environment at 4
[9] In the context of text files, the Rich Text Format (RTF) has become a de facto standard for some purposes.
[10] Angela Bowne, "Trade Marks and Copyright on the Internet" at 135. As discussed below, this has serious implications for copyright owners' reproduction or copying rights.
[11] All references to legislation should be taken to be references to the Copyright Act 1968 (Cth) unless otherwise annotated.
[12] However, computer software posed some problems when it first received protection under the copyright law - see below
[13] Compact Disc
[14] Natalia Yastreboff, "Copyright for online databases on the Internet - Part I" at 36 [quoting from the Highways to Change - Copyright in the new communications environment report]
[15] See CNet news feature, "When World Collide".
[16] McKeough and Stewart at [9.3]
[17] Highways to Change - Copyright in the new communications environment at 3, citing the 1992 OECD report, Telecommunications and Broadcasting: Convergence or Collision
[18] (1997) 37 IPR 495
[19] (1997) 37 IPR 495 per Sheppard P at 512. Such a device will dominate our communication, information and entertainment activities in the near future. The capacity of modern personal computers to fulfil entertainment, communication and information functions is a precursor of the future impact of a Central Information Appliance.
[20] Shane Simpson, "Moving Towards Copyright Control on the Internet" at 200
[21] Wright & Greenleaf, "Law, Convergence and Communicative Values on the net"
[22] Copyright Convergence Group report Highways to Change - Copyright in the new communications environment; Copyright Reform and the Digital Agenda (Proposed Transmission Right, Right of Making Available and Enforcement Measures) Commonwealth Discussion Paper
[23] Such as a broadly defined category of audio-visual material, transient copies (other than those in the course of communications), jurisdiction and treatment of computer-generated works.
[24] Although strictly speaking the term is a misnomer, it captures the concept of a cross-content presentation. The media involved (the form of presentation or storage) is actually singular (typically a CD-Rom), it is the contents of the storage media that have multiple characteristics.
[25] Jenny Zaverdinos, "Legal Aspects of Multi-media - Enforcing Copyright" at 151
[26] from the preamble to the WCT
[27] bits per second (bps) is a measurement of the speed of a flow of data across a communications link
[28] This is based on a land transport analogy. Current communications are likened to a narrow street and are compared to the future systems being a broad highway (also known as the superhighway). The label broadband is also based on a pipeline analogy. Previous generations of communications links have been likened to a narrow pipe through which only small amounts of data can be transported at any one time.
[29] See Ozemail <www.ozemail.com.au>
[30] Copyright Reform and the Digital Agenda (Proposed Transmission Right, Right of Making Available and Enforcement Measures) at 3.48
[31] Howard Seigel & David Stein, Music Performance Rights on the 'Net - Continued Uncertainty Over 'Cybercasting
[32] Video on demand is considered to be a service that will encourage mass-market acceptance and use of Internet-type technologies (known colloquially as a "killer application").
[33] Ralph Oman, "New Global Treaties Protect Copyrights Online - Major revision of Berne gives new rights to creators and performers"; Angela Bowne at 135; Shane Simpson, "Moving Towards Copyright Control on the Internet" at 200; Ian McDonald at 87. For this reason, alternative business models such as those discussed below may become the standard means for creators ensuring an adequate return from their endeavours. It appears that copyright will only be able to provide partial protection to such creators.
[34] Adele Ferguson and David James, "Globalisation, Ready or Not"
[35] In times past local producers had inherent advantages in the servicing of their domestic market. Most local producers have recognised the need to compete with international firms to maintain market share and profitability.
[36] At least few natural or physical barriers
[37] Mark Davison, "Parallel Importing of Copyright Material in a Digital Age: why it should be lawful and why it may never be" at 271
[38] Adele Ferguson and David James; Australian Taxation Office, Tax and the Internet; Joint Committee of Public Accounts and Audit, Internet Commerce - to buy or not to buy
[39] This refers to observations of each of the five senses - sight, hearing, smell, touch and taste.
[40] ie in binary code
[41] see below
[42] As discussed above, the copy of digital content is of identical quality. The copy can be made with significant expense or effort and is particularly difficult to identify and police. Finally, practical advantages of using the original item, such as the convenience of a published book, do not occur in the digital domain.
[43] John Jackson and Campbell McConnell, Economics Chapter 26 "Price and output determination: Pure competition"
[44] James Lahore, Gerald Dworkin & Yvonne Smyth, Information Technology: The Challenge to Copyright at 1-2
[45] There are eight basic categories of works and non-works dealt with by the Act. Part III deals with literary, dramatic, musical and artistic works; Part IV deals with sound recordings, cinematograph films, broadcasts (sound and television) and published editions of works. To receive copyright protection, material must be able to be categorised into one of these.
[46] See Galaxy Electronics Pty Ltd v Sega Enterprises Ltd (1997) 37 IPR 462; discussed in "Other digital material" below
[47] [1916] 2 Ch 601 at 608
[48] See "Other digital content" below
[49] L Meville, "Computer Software and the Relevance of Copyright" at 360
[50] A literary work was defined to include "a written table" and the Act provided that "writing" meant "a mode of representing words, figures or symbols in a visible form": section 10(1).
[51] (1983) 50 ALR 581 (first instance), (1984) 53 ALR 225 (Full Federal Court) and (1986) 161 CLR 171 (High Court)
[52] the "source" code
[53] the "machine readable code" or "object" code
[54] (1984) 53 ALR 225 at 235 and (1986) 161 CLR 171
[55] (1986) 161 CLR 171 at 184. This differs from the Full Federal Court reasoning that the object code was a translation of the source code. This approach was strongly reasoned and would have provided a sound resolution of the dispute as well as protecting the object code. The legislative amendments cause a similar result (see below).
[56] This was convened in response to Beaumont J's first instance decision in Apple Computer - see McKeough & Stewart at [9.12]
[57] section 10(1) Copyright Act
[58] section 10(1) (as it currently reads). The original longer and more technology specific definition was replaced by this definition by the Digital Agenda Act.
[59] (1992) 173 CLR 330
[60] McKeough and Stewart at [9.13]
[61] It also tested for the dongle signal constantly during the program's operation and would cease operations if the appropriate signal was not received
[62] The sequence was 128 bits in length
[63] at 347
[64] per Mason CJ, Brennan & Deane JJ at 336
[65] at 344
[66] at 347
[67] (1997) 37 IPR 436
[68] Copyright protects the manner in which a creator expresses a particular idea but will not protect the idea itself. This is known, in respect of software copyright, as the "look and feel" issue. See for example Wheland Associates v Jaslow Dental Laboratory Inc (1986) 797 F 2d 1222; Digital Communications Associates Inc v Softklone Distributing Corp (1987) 10 IPR 1; Apple Computer Inc v Microsoft Corporation (1992) 24 IPR 225
[69] (1996) 33 IPR 194
[70] (1997) 37 IPR 436
[71] (1997) AIPC 91-350. Pseudocode is a plain English description of the tasks that a particular set of computer code carries out.
[72] Colin Golvan "Court rules out reliance on pseudocode in computer case" at 85
[73] As merely an idea, the pseudocode does not merit copyright protection in its own right.
[74] see the section on written materials below
[75] This is subject to the threshold tests of creativity, authorship and lack of publication.
[76] (1997) 37 IPR 462
[77] Using mapping functions, the computer would produce an image of the user's character in the setting that corresponded to whichever scene the user had manoeuvred to at that point in time.
[78] ie the instructions
[79] ie the data
[80] To what extent is the result of the combination of the user's interaction and the program itself the creation of the programmer and to what extent is it the creation of the user?
[81] News Section: National Reports [1997] 9 EIPR at 232
[82] Denise McBurnie, Anthony Muratore & David Shearman, "Copyright update" at 22
[83] See "Audio-visual material" below.
[84] Lewis Lee & J Scott Davidson at 78-9
[85] (1991) 22 IPR 245 (see below)
[86] in the section headed "software"
[87] (1992) 173 CLR 330
[88] The code was represented by a 128-bit sequence - a digital sequence of 1's and 0's.
[89] Albeit a rather longer sequence of 1's and 0's, it is no different in nature.
[90] However, the code in the dongle was considered by the majority to be a part of a larger piece of computer software. It is uncertain whether a digital file of a visual image could be considered to be part of a larger piece of software, such as package of commercial art software.
[91] at 253
[92] [1982] Ch 119
[93] References by the court to the literary enjoyment of works evidences the underlying attitude of the court here.
[94] Cf Apple Computer Inc v Computer Edge Pty Ltd - at first instance and in the High Court (see above)
[95] See the cases involving Total News and Ticketmaster: Angela Bowne above.
[96] Editor - Shetland News, What the judge said in "The Shetland Times" Case; News Section: National News [1997] 2 EIPR at 49
[97] That is, when viewing the defendant's site, a person would see a border created by the defendant and inside this a story actually residing on the server of the plaintiff.
[98] The plaintiff also brought actions under heads of misrepresentation and passing off.
[99] Editor - Shetland News What the judge said in "The Shetland Times" Case.
[100] Lewis Lee & J Scott Davidson at 59
[101] See below under the heading "Reproduction and copying"
[102] as opposed to a direct examination of the means used by the artist
[103] This may be so even where the second programmer has seen the observable phenomena produced by the first program and has sought to imitate it in their program.
[104] Whelan Associates v Jaslow Dental Laboratory Inc (1986) 797 F 2d 1222; Broderbund Software Inc v Unison World Inc (1986) 7 IPR 193; Digital Communications Associates Inc v Softklone Distributing Corporation (1987) 10 IPR 1
[105] section 10(1)
[106] see above "Other digital material"
[107] Media Technology Group, Allen, Allen & Hemsley, "Current Information Technology Issues in the Pacific Rim" at 20
[108] News Section: National Reports [1997] 2 EIPR 37 at 38
[109] News Section: National Reports [1997] 9 EIPR 229
[110] News Section: National Reports [1997] 9 EIPR at 232
[111] (1995) 4 SSA 229 (TPD) [cited in News Section: National Reports [1997] 2 EIPR at 39]
[112] Multimedia is content containing elements of more than one type of material, such as both text and audio-visual) - see above under the heading "Convergence"
[113] News Section: National Reports [1997] 9 EIPR at 232. It can also be said that the images themselves were only created immediately prior to them being presented by the computer itself.
[114] No 95 C 0719, ND Ill May 28, 1997 [Cited in Meeka Jun, "Mortal Kombat over Digitized Images in Video Games"]
[115] The filmed sequences were later digitalised and incorporated in the computer game. Further, the game would probably receive protection as a computer program. See Meeka Jun above
[116] section 10(1)
[117] Thomton Hall v Shanton Apparel (no 2) (1988) 13 IPR 436; Amalgamated Mining Services v Warman International (1993) 24 IPR 461; Interlego AG v Croner Trading Pty Ltd (1993) 25 IPR 65
[118] Lewis Lee & J Scott Davidson at 79
[119] ie using photocopying technology
[120] section 10(1)
[121] (1984) 2 IPR 456
[122] This appears to follow the same approach as the early cases on literary works (see above) which focussed on works that provided literary enjoyment and pleasure.
[123] at 465
[124] See Cuisenaire v Reed [1963] VR 719; Burke & Margot Burke Ltd v Spicer's Designs [1936] 1 Ch 400; Komesaroff v Mickle (1986) 7 IPR 295
[125] That is, if a digital image or visual creation is "artistic", it should receive protection under the Act.
[126] see under "material form" below
[127] Greenfield Products v Rover-Scott Bonnar (1990) 17 IPR 417; Wham-O Manufacturing Co v Lincoln Industries Ltd [1985] RPC 17. It may be interesting to examine whether three-dimensional rendering using graphics software and virtual reality systems could constitute sculptures. Unfortunately that question is beyond the scope of this paper.
[128] at [624] - quoting from the Copyright Act 1905, section 4
[129] Concise Oxford Dictionary
[130] section 10(1)
[131] section 10(1)
[132] The section makes no reference to the aesthetic qualities of the sounds. There is not requirement for a certain artistic or creative quality.
[133] See below under the heading "Material form"
[134] section 87.
[135] The basic right given to the communicator of creative material is to prevent the reproduction of the broadcast or publication: sections 87 & 88.
[136] Literary, dramatic and musical works - reproduction in material form, publication, performance in public, communication to the public, commercial rental arrangements (in limited circumstances) and to make an adaptation: section 31(1). Artistic works - reproduction in material form, publication, communication to the public: section 31(1). Sound recording - copying, causing the recording to be heard in public, communication to the public and commercial rental arrangements: section 85(1). Cinematograph film - copying, causing the film to be heard and seen in public, communication to the public: section 86. Television and sound broadcasts - to make a film of a television broadcast, to make a sound recording of a sound broadcast and to re-broadcast it or communicate it to the public otherwise than by broadcasting it: section 87. Published editions of literary, dramatic and musical works - to make a facsimile copy: section 88.
[137] sections 36(1) & 101(1)
[138] see above
[139] ie from source code to object code
[140] Duplication will be used to refer to both copying and reproduction rights, where they can be considered together.
[141] Copying is defined in the limited context of cinematograph films (section 10).
[142] Lewis Lee & J Scott Davidson at 77
[143] Concise Oxford Dictionary
[144] see above
[145] See "Material form" below
[146] works & sound recording - section 29(1)(a)&(c)
[147] cinematograph film: section 29(1)(b)
[148] Similar to the new right to "make available to the public" discussed below under the heading of 'Transmission and making available", material can be considered to be published regardless of whether people have read or viewed it.
[149] However, it may also be characterised as the provision of a single reproduction or copy. This would depend on the court's conclusions as to the extent and nature of the operation.
[150] But see, Rank Film Production v Colin S Dodds (1983) 2 IPR 113 (discussed below)
[151] (1997) 38 IPR 294 - see below for a more detailed discussion of APRA v Telstra, in relation to the broadcast and transmission to a diffusion service rights
[152] at 303
[153] at 303
[154] ie the owners of the businesses playing music on hold to their clientele
[155] at 303-4
[156] at 303
[157] (1985) 7 IPR 160; This had been done to demonstrate the capabilities of the systems being offered for sale.
[158] (1964) 5 FLR 41. The court also discussed the process by which someone became a member of the relevant audience.
[159] (1983) 2 IPR 113
[160] section 27(1)
[161] ie heard and/or seen
[162] sections 85 & 86
[163] section 27(2)
[164] section 27(3)
[165] section 10(1)
[166] However, it may be been transmitted to "to the public" in the light of Telstra v APRA and Rank Film Production v Colin S Dodds.
[167] (1993) 26 FCR 131 at 139 [cited in Copyright Reform and the Digital Agenda at 4.8]
[168] section 27(3).
[169] section 25(1). That is not to say that they are limited to broadcasts made to conventional radio and television devices. Transmissions received by telephones have been held to constitute broadcasts for the purposes of the Copyright Act 1968 in Telstra v APRA.
[170] Replaced by the communication right by the Digital Agenda Act.
[171] "'Broadcast' means a communication to the public delivered by a broadcasting service within the meaning of the Broadcasting Services Act 1992;"; "'Sound broadcast' means sounds broadcast otherwise than as part of a television broadcast" and "'Television broadcast' means visual images broadcast by way of television together with any sounds broadcast for reception along with those images": section 10(1).
[172] see section 87
[173] (1997) 38 IPR 294 - see above in regard to the discussion of APRA v Telstra and the concept of "to the public"
[174] Such as where callers to Telstra offices were placed on hold and music was played to them.
[175] The offending conduct occurred well before the commencement of the Digital Agenda Act.
[176] Per Dawson & Gaudron JJ at 300 & 304, Toohey J at 304, McHugh J at 316, Kirby J at 333-4 and 340.
[177] Media Technology Group, Allen, Allen & Hemsley at 8-9
[178] Simon Gilchrist, Telstra v APRA - Implications for the Internet
[179] Ozemail press release 9 June 1998 <www.ozemail.com.au>; "OzEmail settles Net dispute", The Australian newspaper, 10 June 1998 at 28
[180] Copyright Reform and the Digital Agenda 4.38
[181] see above
[182] Highways to Change - Copyright in the new communications environment recommendation 1, para 1.3 [at page 9]; Yee Fen Lim "Internet Service Providers and Liability for Copyright Infringement through Authorisation" at 192
[183] Copyright Reform and the Digital Agenda (Proposed Transmission Right, Right of Making Available and Enforcement Measures) at 4.15
[184] WCT
[185] Copyright Reform and the Digital Agenda at 4.11
[186] Copyright Reform and the Digital Agenda at 4.13 and Appendix three at 3.7
[187] This is because optical technologies use light rather than electrons in the carriage of the signal or data.
[188] Natalia Yastreboff, "Copyright for online databases on the Internet - Part I" at 41
[189] Copyright Reform and the Digital Agenda at 4.84
[190] Howard Seigel & David Stein above
[191] Lewis Lee & J Scott Davidson at 135
[192] Ie the sound recording as a whole, or substantially as a whole, object. Obviously small, component sound recordings are transmitted, saved and played.
[193] Lewis Lee & J Scott Davidson at 136
[194] ie by clicking upon the icon with a mouse
[195] ie an icon
[196] Michael Pendleton above
[197] 991 F 2d 511 (2nd Cir 1993) [cited in Ronald Katz & Lateef Mtima, "Uncertainty Reigns in software cases"]
[198] Ronald Katz & Lateef Mtima [quoting from the judgement - (1993) 991 F 2d 511 at 518-9]
[199] Copyright Reform and the Digital Agenda at 4.54
[200] Copyright Reform and the Digital Agenda at 3.40
[201] Copyright Reform and the Digital Agenda at 4.56
[202] ie the hard disk
[203] ie RAM memory
[204] Stephen Peach & Mia Garlick above
[205] Copyright Reform and the Digital Agenda at 4.57-58
[206] Eg RAM copies of computer software on a user's system.
[207] section 36 and 101. Furthermore, a creator has the right to assign their rights under the Act to another person: section 196(1). This has the practical effect of a permanent licence with a delegated power for the assignee to grant licences.
[208] A copyright owner may utilise a shrinkwrap licence, where the terms of the licence are wrapped in plastic packaging and are only available to the consumer after purchasing the product. Although under general contract law the terms must be agreed between the parties prior to the purchase, as opposed to being unilaterally imposed by one party later, ProCD Inc v Zeidenberg [(1996) 86 F.3d 1447 (7th Circuit) - cited in Copyrites No 24 and by in Angela Bowne at 141] held that a shrinkwrap-type licence is valid.
[209] (1996) 34 IPR481
[210] Colin Golvan, "Trumpet - a comment"
[211] That is, they had provided copies to the public for the purpose of evaluation and required that, should a consumer wish to continue using the product after a trial period, they would make a payment to the company.
[212] Michael Pattison & Moana Weir, "First case on the legal protection of shareware - Trumpet v Ozemail" at 67
[213] Media Technology Group, Allen, Allen & Hemsley "Current Information Technology Issues in the Pacific Rim"at 17
[214] Lewis Lee & J Scott Davidson at 84
[215] Media Technology Group, Allen, Allen & Hemsley, "Current Information Technology Issues in the Pacific Rim" at 14
[216] At least as long as they are not performing it.
[217] "Reforming Copyright for the Digital Age - Everyone's Horse on the Wrong Course"
[218] BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 16 ALR 363; JW Carter & DJ Hartland, Contract Law in Australia
[219] Section 13(2) provides "the exclusive right to do an act . . includes the exclusive right to authorise a person to do that act".
[220] (1975) 133 CLR 1 <www.austlii.edu.au/au/cases/cth/high_ct/133clr1.html> (references are to paragraph numbers in the AUSTLII publication.
[221] Gibbs J at para 10, Jacobs J (with whom McTiernan ACJ agreed) at para 9
[222] (1995) 33 IPR 132
[223] (1993) 839 F Supp 1552 (MD Fla) [cited in Angela Bowne at 140]
[224] (1994) 857 F Supp 679 (ND Cal) [cited in Angela Bowne at 140]
[225] Beth Lipton, "Net Music pirates face lawsuits"
[226] Stephen Loughnan at 19
[227] Copyright Reform and the Digital Agenda at 4.88; Highways to Change - Copyright in the new communications environment at 27
[228] IE unaware of and not involved in the breach.
[229] section 10(1)
[230] Lewis Lee & J Scott Davidson at 79
[231] Lewis Lee & J Scott Davidson at 79; but see the draft CLRC report on the Protection of Computer Software [cited in Copyright Convergence Group, Highways to Change - Copyright in the new communications environment at 23]
[232] See the discussion of the WIPO proceedings under the heading "Transient copies" in the section "Possible legislative changes"
[233] (1992) 22 IPR 245
[234] or group of authors
[235] see McKeough and Stewart at [9.21]
[236] [1985] FSR 306 [cited in Roland at 252]
[237] (1991) 22 IPR 245
[238] at 252
[239] ie the Berne Convention for the Protection of Literary and Artistic Works 1886 and the WCT
[240] Copyright Reform and the Digital Agenda at 4.41
[241] Section 10(1).
[242] John Chesterman & Andy Lipman at 85
[243] Lewis Lee & J Scott Davidson at 58
[244] John Chesterman & Andy Lipman at 105
[245] See below for an explanation of the public/private key system. As it is possible to send a message with confidence that it may only be received and deciphered by the intended recipient, it is possible to encrypt a document and send the instruction (and any necessary key) in an attached message ciphered with the recipient's private key. Thus, the recipient would receive the attached message, ascertain the encryption instructions and be able to decrypt the main document.
[246] "Blind" digital signatures are a possible example of such a scheme.
[247] Using third party organisations such as Visa may be one solution that enables the consumer to remain relatively anonymous. As long as the retailer or creator receives value from a reliable source this may be sufficient. A body such as Visa should be able to authenticate the legitimacy of the vendor also.
[248] Lewis Lee & J Scott Davidson at 59
[249] two mathematically related codes
[250] Integrity of a message in this context refers to the confidence a person can have that a message has not be altered since it was completed by the sender.
[251] Each party involved in the public/private key scheme has two keys associated with them (their public key (A) and private key (B). Using a mathematical relationship (the RSA algorithm) these two keys can be used to cipher and decipher messages. A message ciphered (scrambled) with A can only be deciphered (unscrambled) with B. It is not possible to cipher and decipher a message with the same key. Further, the nature of one key cannot be discovered from the other key in the pair. Hence anybody can send a confidential message ciphered using A (this key, being the public key, is freely available) without fear of interception because only by using B can the message be understood. The person associated with A is the only one with access to B. The corollary is also true. If the sender of a message wanted the recipient to be sure that the message had come from the sender and nobody else, the sender would cipher the message with B. With the ciphered message there would be a "plain-text" instruction that A should be used to decipher the main message. The recipient would attempt to decipher the main message using A and, if successful, would know for certain that the message originated from the sender. That is because no other person has the ability to encode a message such that A could decode it (only by using B can this be done). Finally, the recipient can be sure that the message had not been altered after the original sender sent it. If the communication had been tampered, deciphering would only produce nonsense characters and symbols.
[252] eg The Times <www.the-times.co.uk>
[253] Before distribution to an individual user, word processing software could be specifically encoded to require the user to identify themselves (ie by a unique password) each the application is used.
[254] Lewis Lee & J Scott Davidson at 55
[255] eg retina scans, voice identification, fingerprint scans, keystroke dynamics and facial image recognition
[256] Lewis Lee & J Scott Davidson at 55
[257] They are known as personal identification tokens. See Lewis Lee & J Scott Davidson at 56-7
[258] Lewis Lee & J Scott Davidson at 56
[259] A disadvantage of the automated callback system is that is discourages mobile access to the system (ie where a user is able to move from one place to another and still access the system).
[260] See above. If encypted in this way, the file would only be accessible to the holder of the corresponding private key (ie the user). However, once decrypted, the file would be able to be communicated to third parties free of any controls.
[261] see below
[262] Some Internet sites provide downloadable .exe (executable software programs) instead of pure content files such as a word processing document or picture file. For example, the World Trade Organisation website (www.wto.org)
[263] Blue Spike, Giovanni Digital Watermarks Create Audit Trail
[264] Scott Moskowitz, So this is Convergence? - Technical, Economic, Legal Cryptographic, and Philosophical Considerations for Secure Implementations of Digital Watermarking; see also Record Industry Association of America press release.
[265] Elizabeth Veomett, "Digital Security: Just add watermark"
[266] It would be of such an in significant nature that the human ear would be unable to distinguish the mark from other pieces of random noise and tone in any recording.
[267] Elizabeth Veomett above
[268] Through a watermark within the binary code
[269] Peter Cassidy "How new 'digital watermarks' can protect your on-line images"
[270] This includes the specific versions used
[271] called as a "knowbot"
[272] Examples of these include the "spiders" currently used for some search engines. See <www.webcrawler.com>
[273] Copyright Reform and the Digital Agenda at 4.6; John Chesterman & Andy Lipman at 90
[274] see above; John Chesterman & Andy Lipman at 102
[275] also concluded in 1996
[276] John Chesterman & Andy Lipman at 102
[277] John Chesterman & Andy Lipman at 100
[278] This has been described as an Application Service Provider (ASP) model.
[279] Circumvention techniques do exist - see "Some shared issues" below.
[280] However, circumvention techniques exist. See below under "Some shared issues"
[281] For example, it has been reported that an advanced encryption algorithm, based on a 56-bit key, has been "easily cracked in some high profile demonstrations" - Courtney Macavinta "White House eases cryto limits"
[282] John Chesterman & Andy Lipman at 100
[283] ie a musical
[284] Using such a process it is the sounds produced by the first recording that have been copied, not the underlying digital code. However, the watermark is contained within the sounds themselves (ie within the pitch and rhythm of the songs recorded). Any duplication of these sounds will then contain the watermark. See Elizabeth Veomett above; Jian Zhao, Digital watermarking is the best way to protect intellectual property from illicit copying; Peter Cassidy above
[285] By storing the pattern of pixels used in the image.
[286] A discussion of the concept of fair dealing is beyond the scope of this paper. For an analysis of the topic, see Colin Golvan, An Introduction to Intellectual Property law; Donald F Johnston, Copyright Handbook; Jerome Miller, Applying the new copyright law: A guide for educators and librarians
[287] Copyright Reform and the Digital Agenda at 4.62; News Section: National Reports [1997] 9 EIPR 229 at 231; Anthony Mason, "Developments in the Law of Copyright and Public Access to Information" at 637; Department of Communication and the Arts, Copyrites - No 28; Courtney Macavinta, "House clears copyright Act"
[288] Anthony Mason at 637-638; Thomas Vinje, "The New WIPO Copyright Treaty: A Happy Result in Geneva" at 236
[289] Chris O'Hanlon, "Get copied, be noticed"
[290] See "features of digital content" above
[291] Laurence Tellier-Loniewski & Alain Bensoussan, Digital Broadcasts raise new Copyright Issues - technology is forcing changes in moral rights, economic rights and contract rights; Stephen Loughnan, "Service Provider Liability for User Copyright Infringement on the Internet" at 22; Dr Andrew Christie at 151; Sam Ricketson, The Challenges to Copyright Protection in the Digital Age; Jennifer Douglas, "Too Hot to Handle? - Copyright Protection of Multimedia" at 103-4
[292] or at least non-commercial
[293] Tony Sarno, "Making Web sites pay"; Beth Lipton, "Net Music pirates face lawsuits"
[294] Dr Andrew Christie at 151; Raymond Nimmer & Patricia Ann Krauthaus, "Copyright on the Information Superhighway: Requiem for a Middleweight" at 26; US Information Infrastructure Task Force, "Intellectual Property and the National Information Infrastructure - The Report of the Working Group on Intellectual Property Rights" (The United States Report) at 183
[295] above
[296] Courtney Macavinta, "Net firms mix sex, stock quotes"
[297] See BigPond <www.bigpond.com> and Ozemail <www.ozemail.com.au>
[298] a "micropayment"
[299] This is another example of the "first to market" model - see below.
[300] See <www.afr.com.au>
[301] Tony Sarno above
[302] Tony Sarno above
[303] Sam Ricketson above; Shane Simpson, "Moving Towards Copyright Control on the Internet" at 201
[304] See for example the Sydney Morning Herald Online <www.smh.com.au>
[305] John Perry Barlow above
[306] Chris O'Hanlon above
[307] ie Infobeat <www.infobeat.com>
[308] This is analogous to the Shetland Times dispute discussed earlier.
[309] In the physical realm Tommy Hilfiger is reported to budget for a "20 per cent loss of inventory to pilferage as a marketing exercise". See Chris O'Hanlon above
[310] or even to other digital/non-physical operations
[311] Eg Mallesons Stephen Jaques - <www.msj.com.au>
[312] It is reported that Digital established the Alta Vista engine to demonstrate how fast and reliable its mainframe computer systems are - see <www.altavista.com>
[313] Jim Hu, "Portals offer alternative gateways"
[314] CNet News "The neighbourhood rush"
[315] See <www.toyota.com.au>
[316] See for example the "South Park" fan websites - Beth Lipton, "The price of free expression"
[317] Chris O'Hanlon above
[318] See Netscape <www.netscape.com.au>, Microsoft <www.microsoft.com.au> and <www.adobe.com>.
[319] The business' image and reputation in the marketplace is known in traditional business models as "brand power".
[320] Shane Simpson, "Moving Towards Copyright Control on the Internet" at 202
[321] John Perry Barlow above; Gordon Hughes, "Exploiting Computer Software" at 204; Shane Simpson, "Moving Towards Copyright Control on the Internet" at 201; United States Report at 192
[322] Laurence Tellier-Loniewski & Alain Bensoussan; Dominic Bencivenga, "Protecting Copyrights - Law and Technology Out of Sync in Digital Age"
[323] Antonio Mille at 575-6
[324] or more probably a digital collection society representing owners
[325] APRA and CAL are already attempting to apply their current licences to the digital domain or to create new kinds of licences for this context.
[326] Shane Simpson, "Moving Towards Copyright Control on the Internet" at 200
[327] An example is the Internet based bookshops like Amazon Books <www.amazon.com> and music retailers like CD Now <www.cdnow.com>.
[328] See above under "Digital watermarks" the discussion of online music distribution. See also Thomas Vinje at 236; Stephen Peach & Mia Garlick, "Copyright and the Digital Agenda: An analysis of the proposed changes".
[329] See Netscape <www.netscape.com.au> and Microsoft <www.microsoft.com.au>
[330] This has some interesting implications for rules such as parallel importing - see Mark Davison at 274; Sue Lowe, "The world is your bookstore"
[331] David Higgins, "Pirates of the High C's"; Joe Casimir, "The suits won't wear tailor made"; Audio-Visual Copyright Society Ltd v New South Wales Department of School Education (1997) 37 IPR 495 at 512; Shane Simpson, "Moving Towards Copyright Control on the Internet" at 200; Highways to Change - Copyright in the new communications environment at 65
[332] Megan Richardson and Steven Macchi, "Intellectual Property Cases in the Australian High Court: An Economic Reappraisal" at 133-4
[333] The Sydney Morning Herald <www.smh.com.au>; The Australian <www.theaustralian.com.au>; ABC News <www.abc.net.au/news>
[334] John Chesterman & Andy Lipman
[335] eg telecommunications costs or computer storage media
[336] (1993) 176 CLR 480
[337] Jenny Zaverdinos at 160-61
[338] Copyright Law Review Committee website <www.agps.gov.au/customer/agd/clrc/homepage.html>; Highways to Change - Copyright in the new communications environment
[339] see "Transient Copies" above under the heading "Common Issues"
[340] This possibility was raised but not discussed in detail in Highways to Change - Copyright in the new communications environment at 5-6
[341] Jenny Sinclair, "Online law trends"
[342] Sensual works may include new technological developments that provide the taste, smell and touch senses with stimuli.
[343] A copyright owner would still be able to authorise specific types of action such as a broadcast or publication by different people under the licensing and assignment power. Eg Robyn Coyle has suggested a Convergent Technologies Act in "Copyright & Cyberspace - Divergent Notions" at 69; see also McKeough and Stewart at [9.22]
[344] Highways to Change - Copyright in the new communications environment at 25-6
[345] Mark Twain is reported to have said in an 1897 Cablegram that "The reports of my death are greatly exaggerated." - see <www.tarleton.edu/activities/pages/facultypages/schmidt//Mark_Twain.html>