B,U,LoL,E-ToloN The Formulation of Government Policy for ...

THEOFFICIAL PUBLICATION OF THE COMMUNICATIONSANDMEDIA LAW ASSOCIATION INCORPORATED

B,U,LoL,E-ToloNPrint Post Approved PP: 234093100011 EDITED B~ JASON MACARTHUR AND NIRANJAN ARASARATNAM Vo118 No 3 199

The Formulation ofGovernment Policy for the Internet

At a recent e-business symposium, Dr Rod Badger discussed some of the key drivers for theformulation of Government policy for the Internet.

T he portfolio of Communications,Information Technology and theArts was created after the 1998

election, reflecting the Government’s wishto ensure a more co-ordinated andintegrated approach to all aspects of thedeveloping information economy:infrastructure, services, the domestic 1Tsector, electronic commerce and contentand cultural issues.

I want to discuss the key elements of theGovernment’s agenda for the informationeconomy as it affects the subject of thisconference: "e-business ".

That agenda is one which continues tochange, and is perhaps permanentlyshifting in this area. This is a reflection ofseveral factors:

the rapid changes in technologiesbased around the interconnectedcomputing platform we call thelntemet;

disagreement amongst stakeholderson the appropriate model forGovernment to adopt in key areassuch as authentication;

global factors which may be beyondAustralia’s control but not beyondour influence, for example thecomplex but important issue ofdomain name management at theinternational level.

E-commerce takeup in Australia has beensteady rather than spectacular, but stillvery good by world standards. Business-to-consumer expenditure is running at

around $150-200 million by mostestimates, although one report lastweek put it at 4 times that. Business-to-business is more difficult toestimate, but gIobal trends suggest itmight bein the order of $l billion. Ouroverall rate of lnternet penetration seesAustralia consistently ranked third orfourth behind the USA, Canada andthe Scandinavian countries.

REALITY CHECK

Before looking at e-commerce driversand enablers and the role ofGovernments, both State and Federal,can I suggest a three-point realitycheck. Not because of any negativeaspects ofe-con~merce potential. Quitethe opposite. If the potential is to berealised we must remain hard headedand with our eyes on the main game.

So, some issues to bear in mind.

Firstly, the full economic benefits of.e-commerce are still mostly down the

track. Two key studies in the past 12months - conducted by the OECD andthe US Department of Commerce -soggest that:

¯ the macro-economic impact ofbusiness-to-consumer e-commercewill be positive but is u~ikely to besignificant for some time;

¯ the impact of business-to-business e-commerce is much more significant;

¯ the contribution of"the informationeconomy" to US economicperformance rests largely with the ITsector rather than the more recentphenomenon ore-commerce.

This is not to say that we can ignore thevery real commercial drivers for theuptake ore-commerce. Governments arerightly interested in encouragingelectronic transactions by business as thewave of the future and one all businessesneed to take into account in their businessstrategy. It is a new form of structuraladjustment. But its full effects are juststarling to be measured.

INSIDE THIS ISSUE

Government Policy for the Internet

Karen Knowles on Protecting Artists’ Expression

Protection for Internet Consumer Transactions

Facilities Access Code

Encryption, The Intemetand Bernstein V. Dep’t of Justice

|nternet Censorship: the ABA responds

Fair Dealing Update

CONTENTSTHE FORMULATION OF GOVERNMENT POLICY FOR THE INTERNET

At a recent e-business symposium, Dr Rod Badger discussed some of the key drivers for the formulation of Governmentpolicy for the lnternet.

THE STRUCTURAL FRAMEWORK~ ENCOU RAGING CREATMTY OR STAGNATION?

Singer and lawyer Karen Knowles seeks greater protection for artists’ expression.

PROTECTION FOR INTERNET CONSUMER TRANSACTIONS-A PURPOSE-BUILT INTERNATIONALCONSUMER PROTECTION CONVENTION

Consumer protection for the Interact is a growing concern for governments across the globe. Daril Gawth argues the case foran international consumer protection convention.

LOVE THY COMPETITOR - INTRODUCING THE FACILITIES ACCESS CODE

Matthew McLennan explains the intracacies of the ACCC’s Facilities Access Code.

ENCRYPTION,THE INTERNETAND BERNSTE1N V. DEP’T OF JUST1CE: THE FIRSTAMENDMENTRESCUES ELECTRONIC COMMERCEAND INTERNET PRIVACY

US export restrictions for encryption software have long denied the Australian IT industry valuable cryptography technology.US attorneys Kurt Wimmer and Dawn Nunziato discuss how freedom of speech and privacy were used to strike down theexport restrictions.

INTERNET CENSORSHIP: THE ABA RESPONDS

In a letter to the Editors, Jon Porter of the ABA responds to the article "lnternet Censorship: See No Evil, Speak No Evil,Hear No Evil" published in the last edition of the CLB.

FAIRWHEELINGAND DEALING

Does Channel 7’s multi million dollar payment for exclusive Olympic broadcast rights in Australia guarantee it absoluteexclusivity? Geoff Dilworth examines how the fair dealing provisions of the Copyright Act allow some legitimate erosionof exclusive rights by competitors.

Secondly, the current hype surroundingall things lnternet may actually becounter-productive. A recent survey ofcompany directors by KPMG found thatthis hype - 1he stock market effects whichcaused Alan Greenspan earlier this yearto liken lnternet stock investment to alottery - ranked as one of the top 10reasons adversely affecting investment ine-commerce. Company directors andexecutives xvill take notice wheninventory and transaction costs can bereduced through common electroniccataloguing and ordering across an entireindustry, as is occurring with Australia’smajor supermarkets and the automotiveindustry. But simply mentioning thewords "Internet" and "website’" - orsuggesting a company add "dot.corn" toits name - are not enough.

And thirdly, the lnternet is not a universalcommunications medium. It is a mediumfor access and use by the better educatedand better offin the world’s more affluentcountries, and to some extent by themiddle classes of some developingcotmtries. This might not be an issue forbusinesses who want to focus on thesemarkets. There is nothing wrong withthat. But it is an issue for governments,and while I will talk in a moment about

the benefits of government services onlineit would be a strange policy which didnot ensure that the needs of the offlinepopulation continue to be served equally.

Let me now turn to the key forces drivingthe takeup of e-commerce in Australia,and the key factors in enabling thattakeup to happen. Broadly speaking, theformer tend to be the outcome ofcommercial and technologicaldevelopments, while the latter is wheregovernment is concentrating its efforts.

E-COMMERCEDRIVERS

There appear to be three broad factorsdriving the takeup of e-commerce inAustralia and most OECD countries.

The first two are fundamental commercialconsiderations: reducing the cost ofbusiness transactions, and increasingrevenues through new markets.

With regard to new markets, thedistinction between firms who have onlyever existed on the lnternet and existingfirms seeking to position themselves in avirtual marketplace becomes clearer. Theissues are generally not ones for

Government policy, but do raise very realchallenges for existing contractual andfinancial structures. For example, howdoes a travel agent franchise based ongeographic regions cope with franchiseesentering the lucrative world of onlinetravel where it would not make sense toconfine your customers to one city.

The third driver is, I suggest, an oddmixture of fear and envy.

Fear of being left behind in what is clearlya phenomenon of major proportions.Because the growth trends for Internetusage are very high by any standards:there are now around 170 million lnternetusers worldwide, and Cisco systems tellsus that there are seven new people on thelnternet every second. The growth inspecific sectors is equally rapid, forexample the number of Interact bankingusers in Australia has doubled in the last3 nmnths, to around 300,000.

And a vague envy of what is occurring inthe United States under the banner of"e-commerce", be it share floats, retailingor investment, together with an equallyvague idea that it must be all connectedto that country’s startling economic

Communications Law Bulletin, Vol 18 No 3 1999

performance in recent years. Except thatUS Interuet stocks are now coming undersevere market scrutiny, online retailpurchases in the US are still less than mailorder catalogue purchases.

So maybe the envy is partly misplaced,although it can be put to good use inbringing about a more positive attitudeto electronic business in the moreconservative Australian firms.

E,COMMERCEENABLERS

Infrastructure

Of course the entire structure of theInternet will not work unless there issuffmient capacity to carry traffic at highspeeds and low cost. The Governmenthas established the National BandwidthInquiry to examine the issue of bandwidthavailability and pricing on "backbone"networks within, and to and from,Australia. Within Australia, the inquiryis considering availability between therural and remote areas and the capitalcities as well as inter-capital andinternational availability.

The Inqniry has been set up within theDepartment of Communications.In.formation Technology and the Artsunder the auspices of the AustralianInformation Economy Advisory Council("AIEAC"). The AIEAC is made up company executives, industry andconsumer peak bodies and academicsinvolved in the information economy toprovide high level industry andcommunity input to Government decisionmaking on information industries andinformation economy issues. A SubCommittee of AIEAC has been formedto provide expert input to the work of theInquiry.

The main issues the Inquiry will reporton are:

¯ the drivers nf demand for bandwidth:

potential constraints on bandwidthavailability, including pricing withinAustralia and to and from Australiaand key overseas markets; and

relevant commercial and regulatoryissues.

A discussion paper was expected to beput out in mid-September for publiccomment. The inquiry is expected to becompleted towards the end of 1999.

One factor in Australia’s high rate ofhome Interact usage (22% of householdsin capital cities) is the statutoryrequirement for residential users to havean option of untimod local calls. Wesometimes take this for granted, butuutimed call regimes are rare in Europe,where Interact users have recently stageda series of demonstrations - online ofcourse - to protest at timed local call costswhich they say are inflating the cost ofhome Interact access.

Legal and Regulatory Framework

The term "legal and regulatoryframework" for e-commerce is a bitmisleading. The legal and regulatorybarriers to widespread use of electronictransactions are actually very few, a pointmade by the Attorney-General’s ExpertGroup on E-Commerce in their report lastyear.

There are two key areas .I wouldhighlight.

Firstly, tire Electronic Transactions Bill1999 x~s introduced into the Parliamentearlier this year. It provides forrecognition, under Commonwealth laws,of:

¯ information provided in electronicform;

electronic "signatures" (by whatevertechnology);

¯ production and retention ofdocuments electronically;

¯ rules for sending and receivingdocuments, and attribution.

The Bill. if enacted, will becomplemented by State and Territorylegislation.

Secondly, the Government has announcedits intention to legislate for a nationalprivacy scheme extending privacysafeguards to data collected in the privatesector. We know from recent surveys thatprospective online buyers are concernednot only with security of theirtransactions, but also with what happensto data about themselves gathered bothvoluntarily and semi-vohmtarily tlu’oughthe likes of "cookies". The legislation,to be introduced during the Springsittings of Parliament, will enableenforcement of National Priuciples for theFair Handling of Personal Information.This will occur through industry codesof practice and, where necessary, throughthe Privacy Commissioner and theFederal Court.

Things are moving so fast in the e-commerce area that industry suppliers,users and government have in some casesagreed that Sl~Cific regulatory structuresbe avoided to allow time for marketsolutions to develop, consistent with the"light touch", co.-regulatory approach.

One example of this is authentication,where the Government is in the processof establishing a National ElectronicAuthentication Council ("NEAC"). TheNEAC, chaired by the Nalional Office forthe Information Economy but with wideindustry and user membership, will:

¯ oversee and facilitate standardsdevelopment in authentication;

provide information and advice toindustry and users on technical andcommercial developments;

¯ co-ordinate Australia’s national andinternational work in these areas.

One fiual area of some importauce andsome complexity is the administration ofIntemet domain names, in particular the"dot.au" space. Domain names are acrucial component of "Internetinfrastructure", both nationally andinternationally.

The Government has encouraged industryto develop its own arrangements, and theestablishment of the industry body auDAis a positive step. As auDA movestowards its first full AGM later thismonth, the Government will bemonitoring developments closely.

Awareness Raising and ConsumerConfidence

Getting the legal and regulatoryframework right is a necessary but notsufficient step. Information andassistance for users and potential usersof e-commerce will remain an importantneed for some time yet.

The Online Australia program is theGovernment’s major awareness raisinginitiative, not just for e-commerce but forthe wide (and apparently ever expanding)range of other social and personal usesto which the Interuet can be put.

Online Australian initiatives, all inconjunction with major business andGovernment sponsors, include:

¯ a range of schools-based curriculumprograms and competitions;

¯ major home Internet user ’expos" inSydney and Melbourne next mouth;

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an agenda series of forun~s bringingtogether key industry players toidentif~ issues and solutions in areassuch as health, education, skills, e-commerce and metrics;

a~sm’vey of the attitudes of Australiancompany directors towards e-commerce.

Consumer confidence in onlinetransactions depends on reliableinformation and appropriate safeguards.The National Office for the InformationEcmiomy and the Treasury have jointlyissued a series of consumer fact sheetsdealing with topics such as credit cardsecurity and payment of duties and taxes.The most recent of these fact sheets dealswith Internet banking.

Earlier this year the Minister forFinancial Services and Regulationreleased a draft policy framework forconsumer protection in e-commerce, andwork is proceeding in consultation withindustry- on a draft model code of practicedealing with key consumer issues.

The National Office for the InformationEconomy has established a highlysuccessful consultative group dealingwith e-commerce assurance, in particular

website "seals of approval", and thereseems to be industry and consumersupport for NOIE convening groups suchas this on "neutral ground."

Government Online

Tile Commonwealth has a firmcomlnitment to excellence in onlineservices, both in terms of delivery to thepublic and internal efficiencies.

A review is currently being conducted oftile overall Government online strategyby the Office for Government Online.with options available for considerationby the Government in tile near future.

A number of specific initiatives arealready underway, and it is significantthat they all involve a high degree of co-ordination and. in some cases, co-operative delivery with State andTerritory governments. The realopportunities for electronic servicesdelivery., payments and procurement willnot be realised unless there is substantiveco-operation across all levels ofgovernment. The Online Council,chaired b;~’ Senator Alston and includingStale and Territory Ministers responsiblefor tbe information economy, is a valuablemechanism for achieving this.

Some of the initiatives are:

a review of Commonwealthelectronic payment and purchasing,with an exposure dratt document nowavailable for industry comment until24 September;

linked with this, the Commonwealthand States are working within theframework of the AustralianProcurement and ConstructionCouncil to ensure intcroperability ofthe Government e-commerceframework across jurisdictions;

the Government Information Centrepilot in Launceston - the aim of thecentre is to proxdde information aboutCommonwealth and State services,but not the services themselves;

the GOVERNET (GovernmentElectronic Resources Network)project~ another joint initiativeamong the Commonwealth, Stateand Territory Governments, whichaims to provide online users,regardless of their location or entrypoint, with fast and easy navigation,discovery and access to governmentservices across jurisdictions;

local government services will beiml~roved as part of the Trials inInnovative Government ElectronicRegional Services (TIGERS)program.

Last year the Government established theBusiness Entry Point as the majortransactions platform with snmll business(again, in co-operation with States andTerritories) and the BEP will play significant role in the rollout of the newtax system to business.

International FrameworkIt is a truism that the Internet is a globalphenomenon (albeit one more prominentin the more advanced economies), butwlrat this means in practice for e-commerce is still being played oul on anmnber of fronts.

Traditional inter-governmental forulnsare tackling tile issues in a positive way.

World Trade Organisation ("WTO")services negotiations are to commence by1 January 2000. Australia has offeredthe view that the negotiations should becomprehensive, coveringboth basic and value-addedtelecommunicatious services.


Australia has proposed that the WTO’swork nn electronic commerce shnuid beconfined to areas where the WTO has aclear contribution to make to the legalframework for the conduct of globalelectronic commerce. Care is needed todiscriminate between those areas whereelectronic commerce represents no morethan a new way of doing familiar things,and those areas where it introducesaignifieant change. Overall, the outcomeshould be based on the principle of a light-handed and industry-driven approach toregulation of the Internet.

The OECD has agreed on, or is activelydeveloping, guidelines for the key e-commerce issues of taxation, privacy,authentication and consumer protection.It is also pursuing its traditional researchand analysis role with regard to theeconomic impacts of e-commerce, andAustralia is a major contributor to itswork on business-to-business e-commerce.

But we are also seeing the developmentof international governance modelswhich feature a joint role forgovernments, business and consumers.

Early initiatives from the .private sectorhave included the e-commerce businessrules developed by the InternationalChamber of Commerce, and thestatement on the role of business issuedby major industry bodies as part of theOECD Ministerial Conference on E-Commerce last year.

Much more ambitious is theestablishment of the Interact Corporatioufor Assigned Names and Numbers("ICANN"). ICANN is the non-profitcorporation that was formed to assumeresponsibility for the IP address spaceallocation, protocol parameter

assignment, domain name systemmanagement, and root server systemmanagement functions formerlyperformed under US Governmentcontract. An Australian, Greg Crew ofACIF, is one of the founding votingmembers of ICANN.

UNDERSTANDING WHEREWE ARE HEADING

In e-commerce, of course, there is neverenough data. There seems to be aninsatiable demand for statistics, let aloneany serious analysis. The Government,in partnership with industry, isattempting to rectify tltis by undertakinga major study on the economic impactsof e-commerce.

This project will pilot the modelling ofimpacts at the macro and micro levels ofthe Australian economy, assessing theeffect of e-commerce from the present to2009-10.

Scenarios and qualitative data are beingdeveloped in conjunction with expertindustry input from the IndustryReference Group (a group comprising 13industry partners to the project, includingTelstra, IBM, Australia Post andUnilever).

KEYISSUE~’GOING FORWARD

As we enter the new millennium whatare the key issues for business, forconsumers and for government? May 1suggest the following:

Mainstreaming ~vithin business :That is, recognition of e-commerceas a core business strategy issue

rather than an IT issue. We have seenthis change occur with the Y2Kchallenge. For SMEs the question isa simple one: what will e-commercecontribute to the bottom line? Forlarger finns, "back end" supply chainmanagement willbejust as importantas "front end" marketing and salesover the Interoet.

Mainstreaming within government:Much the same considemtious applywithin government. Electronicprocurements, payments and servicedelivery need to be seen as the norm.But this must not be at the expenseof those who cannot or will notchoose online interaction withgovernment.

Rural infrastructure and access:There is no doubt that access toonline services in some rural andremote areas of Australia remainsexpensive and technically difficult incomparison with capital and regionalcities. The Government is addressingthis through targeted expenditure oninfrastructure in regional areas, andis also exploring ways in whichgreater levels of service and pricecompetition can be achieved. A co-ordination process with State andTerritory governments has beenestablished in this area.

This paper was an address to the e-business Symposium in Melbourne onI September 1999. The paper waswritten by Neville Stevens and wasdelivered by Dr Rod Badger. Dr Badgeris the Acting Executive Director,Information Technology,Telecommunications aud Broadcasting.Neville Stevens is the Secretary to theDepartment of Communications,Information Technology and the Arts.


The Structural Framework:Encouraging Creativity or

Stagnation?Fng~r and lawyer Karen Knowles seeks greater protection for artists’ expression.

W ith the onset of the various newtechnologies changing therealities of existing industries,

when looking at the "big picture", thereis a need for legislative intervention anda need for business adaptation. We thenhave some big questions to answer:

¯ What are we encouraging?

¯ What are we valuing?

¯ Does the current framework servethese purposes?

¯ Is it time for a review?

HISTORICAL POSITION OFCREATORS IN AUSTRALIA

Historically, fine position of creators in UKand Australia, as compared withcontinental Europe, has~oeen verydifferent. French law has long recognisedrights of creators and artists whereas inthe UK and Australia no natural rightsare granted to the creator.

It is well established that Australian lawis predominandy based on UK precedent.Over recent years, with its joining intothe European Community, it has beennecessary for the UK to adapt its laws inunison with other European countries. Asa consequence, this obviously givesEuropean laws more influence inAustralia. However, it remains to be seenwhether this influence will bring aboutcosmetic or more fundamental change inAustralia.

DEFINING CREATION

The traditional view of what is meant bycreation is an action by which, through ¯adding, subtracting or combiningprevious elements, a completely ne~v formis forged that did not previously exist. Anartistic creation is that which transcendsthe mundane, questions or even provokes. ¯provides us with a better view ofwlm weare or deeply touches our inner self.

In this era, with the predominance of thebalance sheet and content that is futile,superficial or simply entertainment

seeking immediate gratification, creationis often undervalued.

CLRC REPORTS

In Australia, we are currently engagedin an overview of copyright. TheCopyright Law Review Committee("Committee") has recently released tworeports - the first predominantly dealingwith exceptions to the exclusive rights ofcopyright owners and the secondpredominantly on the simplification ofthe Copyright Act 1968 ("Act").

It is important to note, as ProfessorDennis Pearce hastened to add at aCopyright Society Seminar late last yearwhen speaking about the release of thefirst report, the limited terms of referencegranted to the Committee when preparingthese reports. Specifically, ProfessorPearce noted that the Colnmillee was notdirected to review the policies behind theAct - the focus was on the simplificationof the Act rather than a general review ofcopyright laws.

In relation to the first report, somecommentators such as Peter O’Donoghueof Jacaranda Wiley Publishers have ~ruadeseine comments worthy of furtherconsideration. Mr O’Donoghue noted:

the necd for some more hard tltinkingabout the new paradigms and whatthese mean in practice, rather thanmerely preserving and extendingprivileges into the new world:

the use of the word "balance" in thecontext of digital technology isnonsense:

in the ease of copyright and digitaltechnology, the need to define whata normal exploitation is before welook at exceptions; and

the proposed changes in the firstreport will mean "bucket loads ofextinguishment" for authors andpublishers.

On this last point, when a meraber of theSeminar panel was queried about the

potential drop in copyright owners’incomes if the Committee reportrecommendations were adopted, theirreply was that the parties could seek adetermination from the CopyrightTribunal about equitable compensation.A quick reality check would indicate thatthe cost involved in such an applicationis clearly prohibitive for most creators andtherefore not a proposal of substance.

PROPOSED LEGISLATIVEAMENDMENT:.

DIGITAL AGENDA BILL

The Digital Agenda Bill has also recentlybeen put forward by the FederalGovernment for comment.

The media release on the Bill and thestated objectives of the Bill appear to beat odds. While the promotional mediarelease on the new Bill states that the Billintends to promote "creative endeavour",one of its stated objectives is to reinforcethe traditional utilitarian model of whatis worthy of copyright. Under Australianla~; no natural rights are given to thecreator. I note with surprise that one wellknown commentator has expressed reliefthat this is clearly stated in the Bill’sobjectives. I, conversely, ask why, as weapproach the 21 ’~ century, we are seekingto entrench what has always been, insteadof seeing an overview of Australiancopyright and new media law within aglobal context and with due considerationto the broader objectives of encouragingcreativity. Surely we are now braveenough to break through the closed cycleof the past and consider other ways toachieve objectives of a flourishing, moredynamic society.

In the current constantly developingenvironment of new technolog;.esredefining markets, use and misuse ofideas and forms of expression, we nowneed a definition of"creative endeavour".If we want the tradition of creative peopleto flourish, we need to discuss thepossibility of defining this term, evenfrom a legislative perspective, and not toallow ourselves to be easily overcome bysimplistic rhetoric.

Page S Communications Law Bulletin, Vo118 N0 2 1999

There is of course a fine line betweenwhat can and should be legislated for, andwhat should be le~ to other means toachieve stated objectives. Otherconsiderations such as how such meanscan be manipulated without the backingof legislation need also to be considered.In that regard, I believe it is wishfulthinking to believe that voluntary codesof ethics alone can protect creators if theyare not legally binding.

Some may argue that defining "creation"is some sort of censorship. Tilecontrasting argument is that without sucba definition, a full "free-for-all" access,either to the original inspiration or thesupposedly newly existing form. easilyleads to a loss of meaning.

BUSINESS PRACTICES -THE REALITY

Aside from the various leaps and boundsbeing made in the technological spheres.from an historical perspective, mostwould agree that nowadays we live ia aperiod of stagnation in relation to thecreative arts.

In the musical field, aside from populardance music, which uses the newtechnologies and means of adaptation tothe full, a majority of today’s releases aresticking to a proven formula, using andre-using well worn out conception andideas, essentially going through themotions. Indeed, as mergers of the largecorporations become more prevalent andimpose their market share, there is anincrease in the practice of old provenformulas being funded, and such lnnsicbeing the only music available on shelves.

While this"isjust the way it is" for many,it is all too clear that this environmentand attitude does not protnote new ideas.concepts or tree creation.

AMENDING COPYRIGHT OROTHER MEANS?

We also need toquestion whether weshould be solely considering theamendment of copyright or looking atother means.

Colin Golvan has raised the questionwhether the right of copyright can in factprovide the much needed andfundamental incentive to produce works,He discusses the possibility of protectio,against "unfair copying" and notes thedilemma of the two opposing arguments.which are: "

the application of a generalprohibition against unfair copying tocopyright may too heavily favourreslrictions against the use of ideas(that have always been exempt fromprotection under the Act); and

that in an age of free copying, it istoo easy to disguise tile form ofexgression of ideas as ideas and avoidcopyright protection completely.

Susan King, in a more general sense,notes tile limitation of copyright statingthat "current intellectual property lawsare concrete parameters set out forconcrete materials".

On a practical level, a major pmbleln thatfaces us in the new media environmentis enforcement. New measures arerequired in order to adapt. As anexample, there are many musicians andaudio artists who are now activelyengaged in "found sound appropriation"and fl~e ranks of outlaws are continuingto grow. These issues pose the followingquestions:

¯ ls file law of copyright relevant there?

¯ How do we balance the need forartists to have resources open to tbem

while at the same time notencouraging plagiarism?

Should we be promoting some senseof what is valuable in order for aproprietary right to ensue?

A WAY FORWARD

We need an international viewpoint whenconsidering these issues as to talk merelyfrom an Australian perspective is insularand ignores the reality of the new globalenvironment. In this relatively newenvironment, such questions are surelyrequired to be addressed in order for usto move forward.

This discussion is not merely the domainof legislators. Business people constantlymake choices that affect these outcomes.I believe that we need to buildinternational networks, working withinour circle of influence and acceptingresponsibility for the society that wedesire.

An encouragement to me in presentingthese views are the comments made byJustice Michael Kirby, now of ourAustralian High Court, who has longargued that law is too important to be lel~

Communications Law Bullet,n, Vot 18 No 2 1999

exclusively to lawyers, judges orparliamentarians.

Today I speak for the often silent voice ofcreative people and encourage aconsideration that creators should beinvited into the fold. There does exist adanger that copyright law reform will bedriven by economic concerns of trade andcompetition rather than by anunderstanding of art and culture.

Finally, John Mountbatten in "Law: TheBig Picture" has made tile followingcomments with which I concur:

"Like art, at its best, lmv should aim,more often than it does, to challengeand, where necessary, shatter theshibboleths of received orthodoxywhich inhibithuman flourishing. Lawshould positively encourage theliberation of out deepestpersonal andsocial aspirations and point us -

wherever possible ~ in the directionof the sublime ".

For me, that is the big picture and that istile challenge - not just for legislators butfor us all.

Karen Knowles is a singer and a lawyerin the Melbourne office of BlakeDmvson Waldror~ She has over 20yearser~perlence as a preformer and recordingartist.

Protection for Internet ConsumerTransactions- A Purpose.Built

International ConsumerProtection Convention

Consumer protection for the Internet is a growing concern for governments across the globe.Daril Gawth argues the case for an international consumer protection convention.

F or the first time in history, becauseof the Internet, we bare utechnology which allows and

encourages literally millions of people toengage in minor consumer transactionsto purchase goods and servicesinternationally (those where theconsumer and the merchant aren’t in lhesame country); but only a new body ofinternational law - a technology-neutralinternational consumer protectionconvention - would be effective in legallyprotecting such transactions. Why is that?The need for an international consumerprotection convention arises for fourmajor reasons.

Firstly, current international tradeprotection laws, such as the Henna SalesConvention, are simply inapplicable toconsumer transactions, those wlrere thebuyer is a private individual.

Secondly, national consumer protectionlaws, such as the T~ai~ PracticesActandthe Sale o f Goods A ct in Australia, whilstapplicable to consumer transactions, arenot applicable to international consumertransactions - they just don’t operateoutside their own national boundaries.

Thirdly, even if an extremely-determinedlegitimately-aggrieved consumer were totry to pursue a remedy via (say) an actionin contract in a foreign court, virtuallyinsurmountable problems would arise.

There implicitly exists an approximatemonetary’ threshold below which it wouldsimply not be cost-effective to pursue suchan action. For convenience, that thresholdcould be set as low as about $50,000.Thus. if you spent $50,000 or less onpurchasing goods or servicesinternationally (via the Internet orolherxvise) and the deal went wrong, thenyou’ve lost your money in the presentlegal regime - possibly a very large sumof money. Also, there will be enormouscomplexity, delay and uncertaintyinvolved; and thai will follow a disputeabout who has jurisdiction.

Fourthly, one solution being explored byso~ne industry self-regulation("improved" or other~vise) -just isn’tpractical, unless you lhink asking the foxto look after the chickens is a good idea.

Thus, in practical terms, there currentlyaren’t any means which offer effective(relatively Clieap and simple) avenues redress for aggrieved internationalInlernet consumers. This fact isrecognised b’~’ many, but no solution hasyet been provided.

Interestingly, tile recent arrival of theInternet (with its projected usage groxvthrate) hasn’t created the problem international consumer transactions canbe mediated by other means - but theInternet has intensified it, and powerfully

stimulates demand for an effectiveremedy. The lnternet is a social andtechnical phenomenon to which the lawhas not yet adjusted.

Protection is required to provide anappropriate mechanism for resolvingpost-transaction problems. These couldarise where there are fully-performingconsumers but, post-transaction, suchconsumers prima facie have somelegitimate grievance concerningperformance by a foreign Interact vendor,and where the vendor is hostile,uncooperative or unavailable, or there issome other problem with them preventingresolution of the problem. Suchgrievances will typically involve non-deliver), or wrong-delivery of goods andservices.

There are some who consider anyregulation to be excessive; that regulationwi!l simply ~trangle an emerging neweconomic force in its infancy, and that"market forces" will regulate the market.In recent times even the US Governmentappears to have taken a similar view - in"A Framework For Global ElectronicCommerce "’, President Clinton stated that"governments musl adopt a non-regulatory, market-oriented approach toelectronic commerce" - but apparentlyto allow it room to grow in its formativeyears only (it stretches credulity to suggestthat any government would allow any


sector of the economy to go unregulatedand untaxed forever). And might"industry self-regulation" and "volunlarycodes of practice" be enough to do thejob? Probably not. It is likely, in the lightof experience, that true self-regulation.as the only or principal form ofconsulncrprotection, would be ineffective andundesirable, and would set up roguevendors as judges in their own cause. Itis practically certain then that a balancedinterventionist approach will be justified.between an over-regulated system and acompletely unregulated laissez-fairesystem.

Without going so far as protectingconsumers frown themselves, lnturnetconsumers will require stone form ofprotection or Internet commerce will(already does) suffer from lack consumer trust. What would they bcprotected from?

Apart from the sharp practice.negligence, etc. of vendors, they need tobe protected from the ignorance theysuffer relative to the knowledge thevendor has about their goods, services andbusiness practices, and from their oxvnignorance concerning consumer rightsand remedies available in the event oflegitimate grievance.

Unless a re~ned,v is soon found, consumerdissatisfaction with or suspicion of theInternet will result in critical loss ofconsumer confidence in the Internet andits promises, resulting in disastrousimpact on the enormous Internetodrivenstimulus predicted for the globaleconomy, with associated flow-on effectsand losses.

A POSSIBLE SOLUTION : ANINTERNATIONAL CONSUMERPROTECTION CONVENTION

So much for problems and rationales.What of solutions? What might aninternational consumer protectionconvention look like, what would it do,who would benefit, and what might bethe costs?

An international consumer protectionconvention would need to consist of twomajor parts. The first part would providefor the establishment and operation ofvarious functional organs within anoverall organisation (possibly an"International Consumer ProtectionOrganisatioa" or smuelhing of the like).Such organs ~vould include a supremegoverning body (perhaps a "Conferenceof States") consisting of delegates fremall member nalions. Under that might bean Executive body whose main functionwould be to oversee the effective

implementation of, and compliance with,the convention. Under that would be ajudiciary (possibly an "InternationalConsumer Court"). A fourth organ wouldbe a technical-support body whose mainfunction would be to provide the meansof, and on-going development andsupport for the operations of thejndiciatyas a court oporatiug in real time throughthe lnteruet, by means of appropriate tele-conferencing and data-processingtechnologies. The technical support bodywould also provide general ~ppo~ forthe other organs of the Organisation.

The first port of the convention wouldthus contain provisions for the powers,functions and responsibilities of thevarious organs noted, including theprocedural rules of the judiciary.

The second part would consist of"harmonised" (internationallyacceptable) consumer protection laws,concerned with such matters as normativeconsumer protection laws (concernedwith the general duties of vendors,consumer rights, remedies, etc.), andpossibly with such matters as therequirement for the registration ofvendors’ unique identities (in a registeradministered by the convention), therequirement for such identity to betransmirted by prescribed manner withinall transactions with consumers, rulesabout the filing of actions with thejudiciary, and many other matters.

What would the convention do? Broadlyspeaking, it would provide cheap andsimple remedies to the kinds of problemsnoted above. From a consumer’s.viewpoint, it would operate as a kind ofglobal Small Claims Tribunal, withenforcement of court orders being effectedby the national representative body ofwhichever nation the vendor isprincipally located. It would do thisthreugh provision of a court operating on-line in real time via the Internet, with allpar~ies and the court visible and audibleto each other wherever they may be.

The facilities for the hearing of mattersto be heard by the court, would initiallybe provided in existing courts throughoutthe territories of each member nation. Inmost cases, the underlying infrastructurealready exists (most courts already haveInteruet access). Eventually, parties mightatlend hearings anywhere there is Interuetaccess - even from within their ownhomes.

Facility for the filing and rece~wng ofcourt documents will be found whereverthe parlies have access to the Internet,


such as in the offices of their ownsolicitors, from a local library or othercommunity urganisation, from their ownhomes and business premises.

What might be the costs of such aconvention, and who would benefit?Would there be winners and losers, or justwinners? It is likely that the major costsof such a scheme would be theestablishment and running costs of theorganisation established to implement theconvention. As it is necessarily a publicsector initiative, funds required for itwould come from governments(taxpayers). The direct and indirect

advantages to taxpayers however, inimplementing such a scheme, would beimmeasurably positive.

Other costs may include "compliancecosts" which would be imposed uponvendors required to comply with the newregulatory scheme. What would thatinvolve? Virtually nothing. A vendorwould be required to register with a localnational authority, possibly display somekind of certificate on their website, andimplement a sub-system in their website-handling software to providetransmission of their unique identity-datato potential customers. All of these costs

would, in the wider scheme of generalbusiness activities conducted via theInternet, be utterly trivial. Would suchcosts be a problem if they were passed onto lnternet consumers by vendors? Theywould be virtually un-noticeable; andwould undoubtedly amount to a cheapform of transaction insurance the averageconsumer would be more than willing topay for.

Daril Gawth is a part-time academic inthe Law Faculty of QueenslandUniversity of Technology and a part-time PHD student

Love Thy Competitor.Introducing the Facilities Access Code

Matthew McLennan explains the intracacies of the new Facilities Access Code.

A re you the proud owner of atelecommunications transmissiontower? Are you planning to

expand your existing network by buildingnew telecommunications transmissiontowers or laying more undergroundcables? Would you like to hang 3’ourtransmission equipment from one of yourcompetitors’ transmission towers?

If you answered "yes" to any of thesequestions, you will be interested in theAustralian Competition and ConsumerCommission’s ("ACCC") new FacilitiesAccess Code ("Code"). The Code setsthe parameters for any future negotiationsbetween carders about access to certaintelecommunications facilities. It cameinto effect on 13 October 1999.

WHAT IS THE FACILITIESACCESS CODE?

The Code sets out the conditions on wlticha carrier who owns a facility (referred toas the "First carrier") is to provideanother carder (referred to as the "Secondcarrier") with access to the followingtelecommunications facilities ("EligibleFacilities"):

¯ telecommunications transmissiontowers (such as mobile towers):

¯ the sites of telecommunicationstransmission towers; and

eligible underground facilities (suchas the underground duct throughwhich a wire, cable, or optical fibremay be laid).

The Code has been drafted by the ACCCin accordance with Part 5 of Schedule 1of the Telecommunications Act 1997.Part 5 provides, in general terms, thattelecommunications carriers must giveeach other access to Eligible Facilities.The Code supplements this generalobligation xvith detailed administrativeand operational procedures.

According to the ACCC, the objective ofthe Code is to facilitate or encourage co-location (of telecommunicationsfacilities) by mandating processes andprocedures for timely access to facilities.to apply in circumstances wherecommercial agreement between carrierscannot be reached. On this view, theCode is the safety net into which will fallaccess disputes which cannot be resolvedconunercially.

KEY FEATURES OFTHE CODE

The Code is divided into 3 parts:

¯ Chapters l to 6, which contain theroles and procedures applicable to alltypes of Eligible Facilities;

Annex’ure A, which deals with accessto telecommunications transmissiontowers and the sites of those towers;and

¯ Annexure B, which deals xvith accessto eligible underground facilities.

In this article our focus is on the generalrules contained in chapters 1 to 6 of theCode.

First Principles

The freedom to negotiate is tempered bya requirement that the First and Secondcarrier comply with the timeframesspecified in the Code. This requirementreflects the ACCC’s goal of allowingcommercial negotiation at the same timeas preventing a reluctant First carrierfrom delaying the provision of access toa Second carrier.

Mandatory conditions of access

Chapter 2 of the Code contains the misswhich are not open to negotiation. Theseare clearly the rules which the ACCCconsiders essential to the operation of thenew access regime.

In the course of providing access, cardersmust provide each other with informationabout their Eligible Facilities andtechnical needs. In order to ensure theunhindered flow of this information the


Code provides that carriers must keepconfidential all confidential informationprovided to them and only use thatinformation for the purposes of the Code.

In the eyes of the Code all carriers areequal and as such deserve equal access toEligible Facilities. This principle isreflected in two important rules. The firstis the non-discrimination rule. A Firstcarrier is expected to take all reasonablesteps to ensure that, as far as practicablehaving regard to its legitimate businessinterests and the interests of third parties,the access that a Second carrier receivesis equivalent to that which the Firstcarrier provides to itself. The second ruleis the queuing rule. A First carrier isrequired to develop a queuing policy forapplications for access to its EligibleFacilities. The queuing policy must benon-discriminatory and seek to ensurethat Second carriers in the queue getaccess as soon as possible.

Finally, presumably to ensure that accessdisputes do not get bogged down in thecourts, the Code requires carriers toengage in dispute resolution, inclndingmediation.

Applying for access

Under the Code, the first step in theprocess of providing access is anexchange of information. Each Firstcarrier must establish and maintain an"Information Package" in relatioo to theprovision of access to its EligibleFacilities. This information packagemust set out, among other things, howaccess to Eligible Facilities is to occur andindicate the amount of time needed togain access to an Eligible Facility.

A Second carrier’s response, as it were,to a First carrier’s Information Packageis a "’Facilities Access Application".Annexures A and B of the Code containdetailed rules about the content andtiming of Facilities Access Applications.These rules vary according to whether therelevant Eligible Facility is atelecommunications transmissiol~ toweror an eligible underground facilit.v.

Negotiating access

The general rule under the Code is thatnegotiations for access to EligibleFacilities must be undertaken in goodfaith and entered into and conducted in atimely manner. The goal of these

negotiations is the creation of a "MasterAccess Agreement" which deals withmatters such as:

¯ access and maintenance procedures;

¯ dispute resolution procedures;

¯ charges for access;

¯ financial security requirements;

¯ technical specifications;

such other procedures as the carriersmay consider necessary for the dueand proper joint operation of theEligible Facility.

First carriers will undoubtedly often haveconcerns about the credilworthiness ofthose who wish to have access to theirEligible Facilities. The Codeacknowledges the legitimacy of theseconcerns at the same time as seeking toprevent them from being used to delayaccess. Accordingly, the Code sets out aformal procedure by which a First carriermay object to the creditworthiness of aSecond carrier and how the Secondcarrier is to respond to such an objection.

use of Eligible Facilities. The First carrieris responsible for the maintenance of theEligible Facility while both First andSecond carriers are responsible for themaintenance of their own equipmentinstalled at the Facility. A First carrier isentitled to undertake emergency repairwork which may include turning-off aSecond carrier’s equipment. Otherwisecarriers are not entitled to obstruct theuse or operation of each other’sequipment. These rules are supported bythe First carrier’s power to suspend accessto an Eligible Facility in the event ofabuse. Finally, by way of last resort theCode contains a long list of events whichentitle either the First or Second carrierto terminate their access arrangements.

IMPLICATIONS FORCARRIERS

It is unlikely that the Code will meanpeace in our time in the realm of accessdisputes. Nevertheless, even if they donot want to love one another, carriersmust learn to live with the Code. In broadterms, this means that they need tounderstand the Code and its effect on theirbusiness so that they can make aninformed choice between:

The provision of access ,,viii almostalways require work to be done on anEligible Facility. The Code refers to thisas "Make Ready Work". It containsdetailed rules about the performance ofMake Ready Work which are intended toaccommodate a First carrier’s concernsthat a Second carrier could damage itsEligible Facilities.

A key element of the philosophyunderlying the Code is the conviction thatit is economically more efficient forcarriers to share Eligible Facilities. Inorder to promote sharing and theefficiencies it may bring the Codeprovides that carriers may choose toinitiate or participate in what is knownas a "Co-Location Consultation Process".A Co-Location Consultation Processinvolves a carrier informing all othercarriers that it has plans to establish anew facility in a particular postcode areaand requesting the other carriers toconsider establishing a shared new sileor facilily.

Implementing access

The continuing viability of access to anEligible Facility is preserved under theCode by rules on the mainlenance and

negotiating access terms freely witheach other (subject to the mandatoryprovisions contained in chapter 2 ofthe Code);

negotiating for access within the four.corners of the minimum standards setby the Code; or

failing agreement, resorting toarbitration (bearing in mind that, ifcarriers cannot agree on an arbitrator,the default arbitrator is the ACCC).

In addition, carriers planning to expandtheir networks will need to consider theimpact of the Code. The Code mayinduce them to share facilities, and thecost of building them, with other carriers.

Matthew McLennan is a lawyer in theSydney office of Allen Allen & Hemsl~:


Encryption, The Internet andBernstein V. Dep’t of Justice:

The First Amendment RescuesE-Commerce and Privacy

US export restrictions for encryption software have long denied the Australian IT industry valuablecryptography technology. US attorneys Kurt Wimmer and Dawn Nunziato discuss how freedom ofspeech and privacy were used to strike down the export restrictions.

I t’s mid-1999, and the concept of aninformation economy finally hasbecome more than rhetoric. Internet

use has expanded to more than 160million users worldwide. Electroniccommerce is booming, with one companyalone reporting more than $1 billion permonth of sales over the Interact. Tbe needto protect online privacy has seized theattention of consumer advocates andlegislators from Washington to Brnsscls.Concerns over protecting mission-crilicalcomputer systems from hackers are at anall-time high following severaldevastating virus attacks. U.S. softwarecompanies are seeking to further theiraccess to an enormous global market.

And the development and export ofencryption software the onetechnological means to protect theintegrity of e-commeree and computersystems and guard personal privacy onthe Internet - is under attack by the U.S.government.

What’s wrong with this picture?

Encryption - mathematical methods forencoding or scrambling the contents ofwritten or spoken communication so thatonly the intended recipient can dectJ’ptand access the communication - is xvidelyregarded as the key to securecommunications on the Internei. E-commerce relies on strong encryption toprotect sensitive credit card and fi~mucialdata, and Internet users have demandedgreater protections for their privacy inboth commercial and personaltransactions. But the effectiveness ofstrong encryption to protect privacy hasled to concerns by the law enforcementcommunity that international terroristscould use encryption to keep theircommunications secret from lawenforcement. This controversy has led theU.S. federal government to regulateencD, ption software as a munition - underthis view, it can only be exported with a

licence from federal authorities. Andbecause information posted on theInternet generally can be accessed fromanywhere in the world, theAdministration has taken the positionthat posting source code for encryptionsoftware on the Internet is an "export"that cannot occur unless the guvernmentgrants the author a licence.

This standoff was broken decidedlyrecenlly by a combinalion of the FirstAmendment, the Ninth Circuit Court ofAppeals in San Francisco, and atenacious young mathematics professornamed Daniel Bernstein. In agroundbreaking decision, the NinthCircuit held that computer source codewas expression protected by/he FirstAmendment, and that the government’sregulation of encryption source codeeffected an unconstitutional priorrestraint on protected expression. In its2-1 decision in Bernstein v. U.S. Dep ’t ofJustice, the court also championed theimportance of protecting the privacy ofcomlnunications and transactions in theelectronic realm. Similar constitutionalchallenges to government regulation ofenc~ption software are currently pendingin the D.C. Circuit and the Sixth Circuit,and Supreme Court review of this issueis likely. (Covington & Burling representsa group of amici challenging thegovernment regulations in all threecircuits, including the Electronic PrivacyInformation Center. Center forDemocracy and Technology, NationalAssociatiou of Manufacturers, InternetSociety, American Civil Liberties Union,as well as several world-renownedcryptographers.)

BACKGROUND

This case originated when DanielBernstein, then a graduate mathematicsstudent at the University of California atBerkeley, developed a mathematicalencryption formula. His fonnula was

expressed in both a scientific paper andin source code, in a high-level computerprogramming language called "C".Bernstein sought to publish both thesource code and the scientific paperthrough ordinary, channels of scientificinterchange - including the Internet, themedium of choice for scientists to debatetheir methods and conclusions - forevaluation, testing, and critique by hispeers. In its Export AdministrationRegulations, the U.S. Department ofCommerce requires anyone wishing to"export" (defined to include publicationvia the Internet) encryption software toreceive a government licence. The licencemay be withheld if the Bureau of ExportAdministration concludes thatpublication is not "consistent with U.S.national security and foreign policyinteresls.’" Although an unfavourablelicensing determination may be appealedto the Executive, there are no timeconstraints placed on executive reviexv,and no judicial review of a licensingdetermination is provided for under theRegulations.

Bernstein applied for a licence to"export"his encryption source code under thepredecessor regulatory regime to theExport Administration Regulations.Upon being denied a lic~nce, he filed suit,claiming that the regulations imposed anunconstitutional prior restraint onprotected expression.

THE FIRST AMENDMENT’SSCOPE IN THE DIGITAL ERA

In addressing Bernstein’s constitutionalchallenge, the Ninth Circuit first had todetermine whether "computer sourcecode" was expression protected by theFirst Amendment. This posed a rathernovel legal question. It is well establishedthat the spoken and written word arewithin tbe ambit of First Amendmentprotection because of their power to

Communications law Bulletin, V0118 No 2 1999

commtmicate ideas or emotions to hmnanbeings. But does code written in computerprogramming language really merit FirstAmendment protection? Does it serve thesame sort of communicative role as otherforms of protectod expression? Even if ithas certain coramunieative elements orfeatures, are these overwhelmed by itsfunctional aspects, as the governmentargued? In the First Amendment speccIVconduct dichotomy, does source code -given its functional qualities -fall on theless-protected "conduct" side of thisdichotomy?

Computer source code - which is writtenin English-like programming languagessuch as C and BASIC - is distinct fromcomputer object code - which is writtenin 0s and Is. While object code directlycontrols the functioning of a computer,source code can be read and understoodby humans and can be used byprogrammers and mathematicians tocommunicate with one anotber. In fact,Bernstein argued that he and his fellowscientists often used source code as avehicle for communicating mathematicaltheories on the science of cu~ptographywith precision and mathematical rigour.But, the government contended, even ifsource code is expressive in some limitedsense, it is essentially functionalexpression deserving of limited FirstAmendment protection. In any case. thegovernment argued, regulation ofencrypdon software is directed tmvard thefunctional aspects of such code - itsability (once translated into object code)to encrypt text, and not at all at lheexpressive aspects of the code or ideasembodied within it.

In her decision, Judge Betty Fletcher heldthat, despite its functional aspects,computer source code merits fullprotection under the First Amendmcut.In declining to afford reduced protectionfor source code because of its functiooalfeatures, she explained:

IT]he government’s argument,distilled to its essence, suggests thateven one drop of "directfunctionality" overwhelms anyconstitutional protection thatexpression might otherwise enj~v.This cannot be so. The distinctionurged on us by the government wouldprove too much in this era of rapid(vevolving computer capabilities. Thefact that computers will soon be ableto respond directly to spokencommands, for example, shonld not

confer on the government theunfettered power to impose priorreslrmnts on speech in an effort tocontrol its "functional" aspects. TheFirst Amendment is concerned withexpression, and we reject the notionthat the admixture o f functionalitynecessarily puts expression beyondthe protections of the Constitution.

Upon finding soorce code to be expressionprotected by the First Amendment, theCourt had little difficulty in concludingthat the licensing scheme embodied in theExport Administration Regulationsimposed an unconstitutional priorrestraint. In order to satisfy the dictatesof the First Amendment, a pre-publication licensing scheme must either(1) provide for certain proceduralsafeguards, or (2) fall witlfin an extremelynarrow class of cases where thepublication at issue would directly andimminently imperil national security (thePentagon Papers standard). In order tobe found constitutional, a licensingscheme that fails to meet the PentagonPapers standard must (1) restrainexpression for only a specified brief timeperiod; and (2) provide for expeditiousjudicial revimv. The government did notcontend that the Internet publication ofenctyption source code would directly audi~mninently imperil national security, and

the court found that the Regulations failedto provide the required proceduralsafeguards. There are no time limitsimposed upon the Executive’s review ofa denial of a licence, and one denied alicence is not provided with anyopportunity for judicial review (much lessexpeditious judicial review). Thus, theRegulations imposed an unconstitutional.prior reslraint on protected expression inviolation of the First Amendment.

PRIVACY IN THEDIGITAL ERA

Beyond its groundbreaking FirstAmendment holding, the court alsorecognised that certain FourthAmendment interests were at slake in thecase before it. Judge Fletcher discussedthe important role that eneryptionsoftware plays in preserving the privacyinterests of those who communicate andconduct business electronically usingtechnologies such as e-mail, the Internet,and cellular phones. Without well-developed encryption technology, thecourt explained, we will be unable to carryover to the electronic realm the privacyin our communications and transactionsthat we have historically enjoyed in thenon-electronic realm. In unprecedentedlanguage, the court recognised the need


to protect electronic communications andtransactions from unwanted surveillanceand interception:

In this increasingly electronic age, weare all required in our everyday livesto rely on modern technology tocommunicate with one another Thisreliance on electroniccommunication, however, has broughtwith it a dramatic diminution in ourability to communicate privately.Cellular phones are subject tomonitoring, email is easilyintercepted, and transactions over thelnternet are often less than secure.Something as commonplace asfurnishing our credit card number,social security number, or bankaccount number puts each of us atrisk.... Whether we are su~,eilledour government, by criminals, or byour neighbours, it is fair to say thatnever has our ability to shield ouraffairs from prying eyes been at sucha low ebb. The availability and useof secure encryption may offer anopportunity to reclaim some portionof the privacy we have lost.Government efforts to controlencryption thus may well intplicatenot only the First Aatendment rightsof cryptographers intent on pushingthe boundaries of their science, butalso the constitutional rights of eachof us as potential recipients ofencryption ’s bounty. 14ewed from thisperspective, the government’s effortsto retard progress in cryptographymay implicate the FourthAmendment, as well as the right tospeak anonymously, the right againstcompelled speech, and the right toinformational privacy. (Citationsomitted).

In sum, the court recognised that theunfettered development and use of strongencryption technology best serves thepublic interest in protecting the privacyof electronic communications andtransactions.

THE FUTURE OFENCR~’PTION, PRIVACY AND

FREE EXPRESSION

The broad holding of Bernstein providesa much-needed second step in theestablishment of cyber-rights that wasbegun in Reno v. A CL U. In the Reno case,the U.S. Supreme Court established thatthe First Amendment applied in full forcein cyberspace. The value of that case liesnot only in its holding striking downportions of die Communications DecencyAct, but in the scope of its language andanalysis. Similarly, the Bernstein courtnow has established that computer sourcecode is protected by the First Amendmentand has done so in a decision thatrecognises that privacy rights are ofcrucial importance in an age defined byelectronic commerce and Internetcommunication.

The Bernstein case thus provides a basisfor moving forward. The most iannediatebenefit is that cryptographers such asProfessor Bernstein finally will be ableto discuss their science on the Interneteffectively and with the protection of theFirst Amendment. The more globalbenefits, however, )nay inure to muchbroader groups. U.S. software companiesthat have been hampered in their effortsto markel encryption softvea ro abroad willbe able to more effectively coml~te withtheir international counterparts. U.S.companies that wish to secure theircommunications by exporting encryptionsoft~vare to their partners and employeesabroad will be free to do so. Secureelectronic commerce will be able toextend past our borders, and U.S.companies will be able to market goodsand services effectively to security-conscious consumers around the world.Pedmps most importantly, the e-mail andother lnternel communications ofindividuals everywhere will have thepotential to be private.

The path toward the effective use ofencryption is not, of course, an entirelyclear one. The Department of Justice is

considering further attacks to the holdingof the panel in Bernstein, and it almostcertainly either will seek rehearing by theentire court or review by the U.S.Supreme Court. Two other federal Courtsof Appeal have cases pending before theminvolving similar First Amendmentchallenges to export restrictions onencryption. In Junger v. Daley, 8 E Supp.2d. 708 (N.D. Ohio 1998), currentlypending before the Sixth Circuit,computer law professor Peter Junger wasrefused a government licence to publishencryption source code via the Internet.Junger is appealing from the districtcourt’s decision that source code -because of its functional characteristics- cannot be characterised as "purespeech" and does not merit full protectionunder the First Amendment. In Karn v.U.S. Dep ’t of State, 925 F. Supp. 1(D.D.C. 1996), now on remand from theD.C. Circuit, cryptographer Philip Karnwas also refused a government licence topublish encryption source code inelectronic form. The district court in gainheld that, because the governmentregulations were not motivated by a desireto suppress expression but rather bylegitimate national security interests, theFirst Amendment was not offended. If,as is likely, either the Sixth Circuit orD.C. Circuit companion cases areresolved differently from Bernstein,Supreme Court review of this importantlegal issue is likely.

Kurt Wimmer is a partner in theWashington, D.C. office of Covington &Burling and is choir of its InformationTechnology practice groap. He andDavidAddis of Covington & Burling arecounsel to the amlcus group in theJunger case.

Dawn Nunziato is an AssociateProfessor at George WashingtonUniversity Law School, where sheteaches lnternet law, computer law, andintellectual property. While associatedwith Covington & Burling, sherepresented the lead amicus group in theBernstein and Karn cases.


Internet Censorship:the ABA responds

In a letter to the Editors, Jan Porter of the ABA responds to the article "Interact Censorship: SeeNo Evil, Speak No Evil, Hear No Evil" published in the last edition of the CLB.

T he co-regulatory schemeestablished by the BroadcastingServices Amendment (Online

Services) Act 1999 ("Act") addressesrisks associated with illegal content andwith content that is unsuitable forchildren, and does so through a range ofregulatory responses. The scheme is basedon the development of codes of practiceby industry and the operation of acomplaints hotliue by the AustralianBroadcasting Authority ("ABA").

Much has been written and much hasbeen said about the regulatory scheme ofwhich some has been misinformed I’dlike to address some of the issues raisedin the article "lnternet Censorship: SeeNo Evil, Speak No Evil, Hear No Evil’’t

which require clarification.

ANTI-AVOIDANCEMEASURES

In the article it is stated that:

"’the new anti-avoidance measureswill force ISPs andlCHs to sco~r theirsites and networks each day toidentify prohibited material. Oncethey discover any questionablematerial, 1SPs and 1CHs will have todecide whether the conteot is similarto prohibited content - ajudgmeot onwhich significant penalties hang. "-

The co-regulatory scheme is complaiuts-based - it establishes a framework inwhich people who are concerned aboutparticular internet content can make acomplaint and have that complaintinvestigated. Under the scheme, ISPs andICHs are not required to actively monitoror to classify content hosted on theirservices.

ICHs have a responsibility to removeprohibited content hosted in Australiafrom their service only once notified bythe ABA of the existence of thai contcnl.This includes lnternet contenl, notifiedin a special take-down notice, that is thesame as, or substantially similar to.Interact content identified in an interi~ntake-down notice or final take-downnotice.

Similarly, it is only xvhen overseas-hostedInternet content is notified by the ABA

to ]SPs do ISPs have a responsibility tofollow procedures set out in an industrycode of practice (or in the absence of cede, an industry standard) for blockingaccess to that eontent. This includesInternet content notified by the ABA toISPs that is the same as, or substantiallysimilar to, lnternet content previouslynotified by the ABA.

The anti-avoidance provisions of the Actspecify that ICHs and ISPs are onlyrequired to respond to notices issued bythe ABA.

Furthermore, there are a graduated rangeof enforcement mechanisms andsanctions contained in the Act to allowflexibility in dealing with breachesdepending on the seriousness of thecircumstances.

COMMUNITY CONCERN

The article also states:

"[t]here is in fact a number of surveysand polls indicating an ambivalencetowaKls lnternet content regulation of

the .type proposed by the Act. ’’~

Findings from a three countryinleraational survey on attitudes Io thelnlernet make clear thai there is a highlevel of public perception that the Internetentails seine risks for users and showsthat Anstmlians see industry, govermnentand Internet users the]nselves as allbaying a part to play in the appropriatesupervision and selection of lnlernetconlent.

The survey was undertaken in Australia,Germany and the USA by theBertelsmann Foundation in co-operationwith the Australian BrondcastingAuthority during June 1999. It ascertainspeoples’ views on perceived risksassociated with the Interact and practicalways of managing these risks. Please findatlached a summary of lhe researchfindings?

TECHNICAL ANDCOMMERCIAL FEASIBILITY

One of the areas of the new legislationthat has been subject to considerablecmnment is the area relating to the

blocking of prohibited content hostedoverseas. In the first instance, this matteris to be dealt with by indust~ codes ofpractice. It is only if indast~ codes arenot developed and in place by 1 lanua[y2000 or if a registered code of practice isfound to be deficient, the ABA will needto move to the development of an industrystandard.

In the event that oeither a code of practicenor indust~ standard is in place, the ABAhas the power to issue access-p~ventionnotices directing all ISPs known to theABA to take all reasonable steps toprevent end-users from accessingprohibited content hosted overseas.

In determining whether particular stepsare reasonable, regard must be had to thetechnical and commercial feasibility oftaking the steps. The issue ofreasonableness will also be informed bythe matters set out in section 4 of the Actwhich include:

Avoiding the unnecessa~¢ impositionof financial and administrativeburdens on ISPs and ICHs;

The accommodation of technologicalchange;

The encouragement of thedevelopment oflnternet tectmologiesand their applicalion;

The practical provision of services tothe Australian community; and

The supply of Internet services atperformance standards thatreasonably meet the social, industrialand commercial needs of theAustralian community.

Jon Porter is Assi~ant Manager, OnlineServices Content Regulation at theAustralian Broadcasting Authority.

1. ’lnternet Censorship: See No Evil. Speak NoEvil, Hear No Evil’, Communications Law Bulletin.Vo/18 No 2 1999, page 3.

2. Ibid, page 3,3. The full report contains detailed comparativedata for the three countries that participated inthe study and can be accessed at the ABA’swebsite.

4. Ibid, page 4.

Communlcationa Law Bulletin, Vo118 No 2 1999

FAIR WHEELING AND DEALING~)oes Channel 7’s multi million dollar payment for exclusive Olympic broadcast rights in Austral(-"guarantee it absolute exclusivity? Geoff Dilworth examines how the fair dealing provisions of theCopyright Act allow some legitimate erosion of exclusive rights by competitors.

FAIR DEALING -AN OVERVIEW

U nder sections 40-43 of tbeCopyright Act 1968 (’Act’) thereare four categories of fair

dealing, namely research and study;criticism or review; reporting of news;and the giving of professional advice.

Why have these fair dealing sections inthe Act? One view expressed in relationto the fair use provisions of the UnitedStates CopyrightAct was: -

"lts origins lie in judge made attemptsto moderate the harsh or inequitableimpact of the copyright law onsometimes unforeseen circumstances.Fair use permits courts to avoid rigidapplication of the copyright statutewhen, on occasion, it wouM stifle thevery creativity which that law isdesigned to foster "

The Australian Copyright Councilexpresses it thus: -

"The Fair Dealing defences..., havetraditionally been formulated toensure that the advancement ofknowledge and the creation of newworks is not stifled by excessive fetterson the ability of creators to draw onthe work of those that precededthem."

The concept of fair dealing is not simplya creature of statute and existed wellbefore the introduction of the Act: -

"It is perhaps as old as copyrightprotection itself. The modern statutesmerely codify the concept which hasevoh,ed through a large and wideranging body of case law. "

In order to place fair dealing in thecontext of copyright infringement, it isuseful to consider some infringementbasics. If copyright subsists in a publishednews article, then an unauthorisedreproduction of the literary work (or substantial part of it) will amount to anactionable infringement. Another

element of infringement is that theinfringer must have copied, either directlyor indirectly, the original article ofpublication. Copyright is not like patentlaw which bestows monopoly rights, flitwere possible to reproduce the articlewithout copying the original article, thatis by independent mental and physicalprocess, then there of course will be noinfringement. An example would be iftwo journalists obtained independently ofeach other the same interview from thesame source and the result was similarin its expression.

IS IT NEWS ANDIS IT FAIR?

If your purpose is news report ing and yourtreatment of the copyright owner’sproduct is fair then you, the infringingjournalist or publisher, xvill be able to usethe copyright owner’s product withimpunity provided in the case of newsreporting in a newspaper, magazine orperiodical it is sufficiently acknowledged.

In Beloff v Pressdram Limited theplaintiff journalist was asked whetherwhat she had written ~vas news and shereplied: -

"it is news in the sense that everything1 write is news. The fact o fray writingthis article is news; and of n~ writinga~Lv other article in the Observer is

The interesting aspect of this exmninationby the court is that it is not the"Maudling-Hoffman" affair which was beingexamined for its newsworthiness but thefact that the Observer’s politicalcorrespondent had written about the affairthat made it news. Mr Foot of Private Eyein evidence said: -

"’It was a very significantdevelopment that the politicalcorrespondent (of the ObserverNewspaper) had written a largearticle on this... Such an article is notfar off editorial comment and istherefore very important. ""

The plaintiff’s counsel conceded that thefact that the Observer had published anarticle on the affair was important. Thejudge acknowledged that the plaintiffalsoconceded that the article in Private Eyewas for the purposes of reporting currentevents within the meaning of thelegislation.

Ungoed Thomas J also noted that itseemed that it was common practice inthe press to receive and use leakedconfidential information, and thispractice did in fact occur at the Observeritself. Nevertheless, tbe judge was of theview that the leaking of the memorandumand its publication were clearlyunjustifiable and in his view constituteda dealing which was not fair within thestatute.

Whilst one could view the judge’s findingas somexvhat authoritative, that is, thatthe publication of leaked information isprima facie an unfair dealing, the judgewas also of the view that this case wasessentially: -

"an action for breach of confidenceunder the guise of an action forinfringement of copyright - an actionspringing from breach of confidencebut frmned in breach of copyright."

The reason for the judge’s commentscould be because of his viexv, as confirmedby the plaintiff’s counsel, that the casewould never have been brought to courtexcept that the memorandum publishedby Private Eye disclosed a confidentialsource of the Observer.

In Commonwealth of Australia v JohnFairfax and Sons Limited, Mason Jfollowed Beloff in finding that thepublication of leaked governmentdocuments, which could not without theleak have been published at all, was nota"fair dealing" of previously unpublishedworks.

In Associated Newspapers v News Groupthe defendant newspaper had merelypresented the correspondence to the

page 16 Communications Law Bulletin, Vo118 No 2 1999

public and there had been little or nocriticism or review. This case involvedthe Daily Mail Newspaper, which hadobtained exclusive rights to a series ofletters between the late Duke and Duchessof Windsor. A series of these letters wasprinted in the newspaper. The defendants,who were the owners of the rival SunNewspaper, printed one of the letters anda portion of another letter in the Sun.

In Faiffax and Associated Newspapers,the publication of the vethatim quotationsof the government documcuts and theroyal love letters respectively was heldnot to b¢ a fair dealing for the purposesof criticism and review. Yet there is anargument, based on free speechprinciples, that it is the verbatimquotations themselves that areintrinsically newsworthy under the newsreporting category.

In Associated Newspapers, Walton Jstated that the media is not prevented bycopyright restrictions from publishinginformation or facts about an event in theso called public interest. His Honour saidthe media are simply not able to publishusing the precise words which somebodyelse has used. This ofceurse is the classicapplication of the idea/expressiondichotomy to the complaint tlmt copyrightrestricts free speech. Whilst it is true thatnews per se, like information, facts andideas, is not able to be protected orrestricted by copyright, it is here that thedividing line between ideas and theirexpression becomes blurred whenexamining the verbatim comments ofpolitical figures.

Walton J then went on to examinewhether what the Sun printed conld belabelled "reporting current events" withinthe meaning of the UK legislation. It isclear that the Australian equivalent of therelevm~t section is not restricted to currentevents and is therefore able to bc readmore widely. Walton J stressed the word"current" and stated that whilst the deathof the duchess was a current event, theactual content of the letters was not.Apparently the content oftbe letters madeit clear that the duchess wanted them tobe published but again the judge did notsee this as a current event. His Honourdid give some examples of where non-current events might come within thesection, but only if the historical materialwas reasonably necessary to deal withcurrent events. In Beloff, Ungoed-

Thomas J by contrast appeared to acceptthat "current events" and "news" weresynonymous.

On the question of fairness, Walton Jfollowed traditional lines in finding thatit is not a fair dealing for a trade rival totake copyright material and use it for theirown benefit,

Dealing with the amount of the copyrightmaterial used, His Honour noted that asubstantial portion of the letters wasreproduced, but stated that the whole ofthe letters could well have beenreproduced as an illustration of a themeother than the mere content of the letters.He gave as an example an articlecommenting on the instruction ingrammar given to monarchs of the Houseof Windsor.

This view is certainly a little lessrestrictive than that of Whifford J in theearlier case oflPT Publications and othersv Time Out Ltd and others where it washeld that:-

"The Defendants could not availthemselves of the defence of fairdealing either under Section 6 (2)(criticism or review) or under Section6 (3).(reporting of current events) the Act. These de fences were intendedto protect reviewers or commentalorswho wished to quote part of thecopyrighted work to illustrate such

Whifford J went on to observe that:-

"’Once it is established that the wholeor a substantial part of thecopyrighted work has been producedthe defenees under Section 6 (2 and3) are unlikely to succeed,"

In Express Newspapers PLC v News (UK)Limited a journalist from tire DailyExpress (owned by the plaintiff) obtainedan interview with a Miss Pamela Bourdeson an airline flight. Miss Bourdes was in1989 enjoying notorie~ for her allegedliaisons with public figures. The DailyExpress published the "exclusiveinterview" and on the same day "Today"(owned by the defendant) published article based oa the Daily Express storyand reciting verbatim the comments byMiss Bourdes in the Daily Express story,The defendant counterclaimed against thePlaintiff arising out of a quite separate

sto~y alleging that the defendant had doneto the plaintiffjnst what the plaintiff hadalleged the defendant had done in thePamela Bourdes incident. The court heldthat a party could not plead twoinconsistent cases and by way of obiterdicta the judge said that the case was moreto do with journalistic ethics rather thana genuine commercial dispute.

In De Garis and Moore v Neville JetfressPidier Pty Limited (I’he Journalist’s Case)the plaintiff alleged that the defendant’snews clipping service had infringed theircopyright in articles published in dailynewspapers. The copyright materialreproduced by the defendant was clippedthen photocopied from the plaintiff’snewspapers and the input by NevilleJeffress Pidler was fairly limited.Beaumont J in the Federal Court had nodifficulty in holding that section 41 of theAct did not apply.

Importantly, His Honour held that "newsreporting" under the Act was notconfined to current events and was to beinterpreted by means of a dictionarydefinition.

With respect to fairness generally,Beaumont J held that reasonableproportions of the copyright material onlycould he taken. As the defendant took thewhole of the plaintiff’s work withoutcommentary, it was not fair.

COMMERCIAL PURPOSE -NO FAIR USE?

In The Journalist’s Case the courtconsidered the commercial purpose of thenews clipping service and cited recentU.S. cases as authority for the prepositionthat a commercial purpose militates quitestrongly against a finding of fair use. Inthe authoritative 1994 decision of the U.S.Supreme Court in Universal City Studiosv Sony, it was held that copying onto avideo tape cassette for commercialpurposes was presumptively unfair. Thisview was in the course of finding thathome video taping for time-shift purposeswas a private non commercial activity.

However, the view that commcrcialitytaints any fair use has recently co~neunder attack by the U.S. Supreme Courtin Campbell v Acuff-Rose Music Incwhere the court examined in detail thefair use provisions in the U.S. CopyrightAct.

Communications Law Bulletin, Vo118 No 21999

Fair use in the United States is governedby section 107 of the US Act. Thepurposes are similar to those in Australiaand include criticism, comment and newsreporting. Section 107 sets out certainfactors which shall be considered,namely:-

1. purpose and character of use(including whether of a commercialnature);

2. nature ofcopyrightwork;

3. relative amount used; and

effect upon potential market.

These factors correspond almostidentically with section 40 (2) (a) to of the Australian Act.

The claim in Accuff-Rose was broughtby the composers of the song "Oh PrettyWoman" against 2 live crew, a rap group,who produced a parody of the songentitled "Pretty Woman". The Court ofAppeals had relied upon the Sonydecision and found that the commercialnature of the parody meant that it wasnot fair within section 107. However, onappeal, the Supreme Court said that by"...giving dispositive weight to thecommercial nature of the parody theCourt of Appeals erred" and furtherstated:-

"The Court of Appeal~ elevation ofone sentence from Sony to a per serule runs as much counter to Sonyitself as to the long common lawtradition of fair use adjudication ".

WORLD CUPSOCCER

Whilst the U.S. Supreme Court in Sonyin 1994 upheld the presumption of no fairuse where commercial gain was a motive,in the United Kingdom in an earlier casethe same commercial factor wasexamined. In British BroadcastingCorporation v British SatelliteBroadcasting Limited the issue involvedunauthorised use of copyright material bytrade rivals in the news reportingindustry. The BBC paid just under 1million pounds for the exclusive right tobroadcast the 1990 World Cup footballtournament played in Italy. BSB in itssportsdesk program played excerpts takenfrom the BBC broadcasts. The excerpts

varied in length and were played within24 hours of the game. The excerptsconcentrated on goals scored and nearmisses and were played by way of anintroduction and also in slow motion.

There was no doubt as to the copyrightin the BBC broadcast or that BSBinfringed BBC’s broadcasts in thismanner. BSB relied on the fair dealingprovisions in the United KingdomCopyright Act, namely section 30(2)which referred to "reporting currentevents" (not the reporting of news as inthe Australian equivalent). The BBCrelied on Beloffand Johnstone v BernardJones Publications Limited as authorityfor the proposition that the dealing mustbe fair for the approved purpose, namelyreporting current events, and not for anyother purpose. The BBC submitted thatthe other purpose of BSB was to competewith the BBC for a sports audience andto build up a sports audience more quicklyusing BBC material. Scott J concededthat BSB was endeavouring to produceprograms tha! would be attractive toviexvers and went on to say:-

"But if a program is a genuinereporting of current events, it is, inmy opinion, absurd to say that anendeavour to make the program moreattractive is an oblique motive .... "

and

"’... the fact that the other broadcasteris a connnerciol rival of the copyrightowner does not "ipso facto’" take thecase outside fair dealing. It is of actor,and perhaps in some cases a veryweighty factor, to be taken intoaccount into considering whetherthere has been fair dealing, but it isno more than a faclo~ "

Scott J had no difficulty in finding thatthe BBC’s programs were current eventsfor the purposes of section 30(2):-

"’The Sportsdesk progranl seemed tome to be genuine news reports, albeitconfined to news of a sportingcharacter"

Whilst there are few Australian cases onthis point, it is reasonable to assume thatan Australian court would take a similarview given the similar legislativeprovisions in both statutes and the widerdefinition of’news’ in fl~e Australian Act.

FIRSTPUBLICATION RIGHTS

The copyright holder’s right to firstpublication is considered to be a factor infair dealing decisions both in the U.K.and in the U.S.. In Harper and Rowe vNation Enterprises the U.S. SupremeCourt held 6:3 that the Nation magazinehad not dealt fairly wi~h the unpublishedwritten memoirs of former presidentGerald Ford. Ford had contracted withHarper and Rowe to publish his memoirsand Harper and Rowe had contracted withTime Magazine for the pre publicationof excerpts of the book. Nation Magazinehad obtained an unauthorised copy of thebook and hurriedly prepared a summaryof the book consisting of verbatim quoteswhich it freely admitted was designed to"scoop" the Time article. The memoirswere politically of interest as theycontained former President Ford’saccount of Watergate and his pardon offormer President Richard Nixon. Themajority believed that the right to firstpublication was essentially a commercialright in that the right lies primarily inexclusivity. The court went further andsaid:-

"The obvious benefit to author andpublic alike of assuring authors theleisure to develop free ofexpropriation outweighs any shortterm "news value" to be gained frompremature publication of the author’sexpression. "

Under the "purpose" factor of section 107of the U.S. Act the majority believed thatthe news value in the Nation article wasthe fact that it was scooped:-

"(Nation) .... actively sought exploit the headline value of itsinfringement, making a "news event"out of it’s unauthorised firstpublication of a noted figure’scopyrighted expression. "

,The majority in Nation stressed thecommerciality of the infringement inthat:-

"The user (Nation) stands to profitfrom exploitation of the copyrightedmaterial without paying thecustomary price ".

Nation was decidedby the Supreme Courtafter Sony and before Accuff-Rose. As a

P~e 18 Communl~a;Ions Law Bulletin, Vo118 No 2 1999

result of the latter decision, the factor ofcommerciality may not be as much adetermining factor as it was for theSupreme Court in both the Sony andNation cases.

In Nation, the U.S. Supreme Court foundthat the investment of money andresources into creating a work should notbe forfeited by pre-emption of the rightto first publication. Lloyd and Mayedacomment that this majority view hintsthat the decision may have been differentif there was a possibility of theinformation not being released to thepublic in the near future.

Mason J in Fairfax held that a dealingwith an unpublished work under section

41 of the Act was an important factor indeciding whether such dealing was fair.The statement by the majority in Nationcertainly lbllowed that same reasoning.Subsequent cases in the United Statesalso support the same argument, but inNew Era Publications International vHenry Holt and Co the judge said:-

"... 1 do not think that Harper andRowe ... leads" to the inevitableconclusion that all copying.fi’omunpublished work is per seinfriogement. "

Indeed this issue is important to the mediaas well as to historians and biographerswho argue that they should be able to usesuch unpublished material belonging to

public figures as a fnir dealing. Tireargument is that the media should nothave to pay those public figures lbr theuse of the previqusly unpublishedmaterial. The argament is presumablystrongest in the United States where theFirst Amendment is a factor. In Nationthe court held that there was no reason toexpand the fair use doctrine to whatamounted to a public figure exception tocopyright.

Geoff Dilworth is a lawyer at TaperellRatledge in Gosford. This is an editedextract of the original article withoutfootttotes.

¯ Kenny’s Pal is missing

¯ ASTRA has had the unpleasant task of explaining the disappearance of Cartman to¯¯ his pal, Kenny and to his mates at the Comedy Channel.

Cartman’s disappearance seems to have followed a rather big night at the CAMLA¯ Dinner held at the Australian Museum. Nobody was keeping a close eye on Cartman’s-" behaviour and during the final rounds of trivia, it appears that he left the premises¯ arm-in-arm with an unidentified new-found "friend".

¯ Cartrnan may well have presented himself as an available long-term companion," however his true friends at the Comedy Channel are most upset and unamused by’ his¯ disappearance and seek your assistance itf convincing Cartman to return to his real¯ home.

¯ If anyone knows the whereabouts of Cartman could they please contact Debra Richards¯ or Emma McDonald at ASTRA on 9200 1494 or 0407 389 639. We are only concerned¯ " for his safe return. He will be grounded for disappearing, but his "friend" will only be¯¯ thanked for being a responsible adult.


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