Next round of ACTA negotiations, Mexico: still no transparency in sight

[ reposted from EFA ]

The next round of negotiations on the secret Anti-Counterfeiting Trade Agreement (ACTA) are due to begin this week in Guadalajara, Mexico. On the agenda this week are civil copyright measures, border measures, internet enforcement measures, and, very briefly, the issue of the lack of transparency in the negotiations.

While much of the text is hidden from public view, the EU’s analysis of the negotiations was leaked late last year. The leak confirms that the ACTA is designed to impose the tough sanctions developed by the US for copyright infringement on other signatories. The main goal of the ACTA seems to be to bypass the WIPO system and entrench US-style copyright regulations around the world. In this sense, a multi-lateral agreement may be more effective than the series of bi-lateral agreements that we have seen in recent years because it has the opportunity to bind several countries at once to implement US-equivalent law.

By doing away with the open international process that WIPO conducts, the ACTA poses a real threat to the reasoned modification of intellectual property laws worldwide. By doing so in secret, it ensures that democratic processes are marginalised; the public will only get to see the text once it has been finalised, at a point when it is likely to be too late, politically, for states to withdraw support.

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MyTVR launches; but is it legal?

MyTVR have now launched their Australian service, which allows Australians to schedule free-to-air television programmes to be recorded by the company and stream the recording to their home PCs or mobile devices.

The interesting question is whether MyTVR’s service is legal for Australians to use (and, of course, legal for MyTVR to offer) under Australian copyright law. I assume here that MyTVR is not licensing the right to provide the service from television broadcasters, but is instead relying on the protection granted to Australians to ‘time-shift’ free to air television. (This conclusion is supported by the lack of mention in the terms and conditions of any licence granted by MyTVR to its users from the Broadcasters or holders of underlying rights.)

This is an issue that has been important in Australian copyright doctrine for quite a while. In the US, a flexible fair use defence exists that allows innovators to investigate and begin to offer a service without immediately being prevented from doing so by copyright owners. This is how the VCR was developed, for example; in the US, Sony was able to argue that it was fair use for users to record television programs for their own personal use. In Australia, by contrast, there is no broad ‘fair use’ exception, which means that if the personal use does not fit into a category like ‘research and study’, ‘criticism and review’, ‘news reporting’, or, now, ‘parody or satire’, it is immediately prohibited. It took twenty years for the law to catch up and add an exception for time-shifting television broadcasts; at least ten years to allow people to make digital copies of music they own to play on their own devices; and it still isn’t legal to make a copy of a DVD you own to either backup or play on a portable device.

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