Category Archives: Intellectual Property Rights

A couple of No-No’s for content marketers

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If you are just getting started in content marketing, or if social media is still a bit of a novelty for your organisation, there are a couple of things you should definitely avoid when attempting to use third-party content for your own promotional purposes: don’t misappropriate, and don’t misrepresent.

All marketers will be alert to false, deceptive or misleading advertising. More experienced content developers should also understand legal issues such as plagiarism, copyright infringement, passing-off and libel. However, even seemingly innocent and well-intentioned references made to third-party content may inadvertently border on unconscionable conduct.

Last week, I had the rather disturbing experience of a company attempting to use my blog to promote a service, and in a way that not only implied I was endorsing that service, but also suggested that my blog was somehow the reason why customers should sign up for it.

I found this problematic for three reasons:

First, I had no knowledge of or connection with this particular service, and the promotional message gave the impression I was endorsing it, which was obviously misleading, and it quoted my article out of context. At an extreme level, if I ever wrote a blog about the “10 reasons why I take public transport”, and then a political party co-opted my content to say “10 reasons why you should vote for our transport policy”, that would be misappropriation (of my content) and misrepresentation (of my views).

Second, even though the service referred to was being offered for free, if the company had managed to generate new clients via this particular campaign, there’s no direct benefit to me or my business, but lots of benefit to the company and/or its partners. In this increasingly self-directed, interconnected and collaborative environment, it’s important to make sure we are all “paying it forward” in a constructive and mutually beneficial way. (I have no problem with receiving a referral fee or a direct benefit in kind if my efforts have been instrumental in securing new customers for your business!)

Third, I am fortunate that a number of my blog articles have been re-syndicated via social media and other channels. In writing about third-party products and services, I am very careful not to endorse specific businesses or brands, other than to mention names (and link to relevant sites). Where I am providing criticism, I endeavour to do so under the auspices of “fair comment”. This is important when establishing credibility with an audience: that my content is seen to be authentic, that I demonstrate awareness about the purpose and context of my blog, and that I attribute whenever I am referencing or citing third-party content. (See an earlier blog I wrote on this topic) But, if in doubt, always ask the content owner in advance before linking, referencing, quoting, attributing or re-contextualising their content.

Finally, if I can be of any assistance in relation to your own content marketing, please let me know via this site.

CSIRO – what price #innovation?

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Last week Startup Victoria invited scientists and researchers from CSIRO to come and talk about some of the projects they are currently working on. Around 400 people turned up to listen to fascinating presentations on flexible solar panels, 3-D titanium printing, flexible OLED lighting, robotics, wearable kinetic dynamos powering textile-based battery storage systems, high-speed instrumentation using FPGA, and micro-manufacturing processes.

logoFrom the outset, the emphasis of each presentation was on the practical application of these inventions. The goal of the evening was to encourage entrepreneurs and founders from the startup community to connect and engage with CSIRO’s project teams. There was an open invitation to co-operate with CSIRO, via R&D, prototyping, IP licensing and commercialisation initiatives.

The evening was generously sponsored by Cogent, PwC, Elance-oDesk and BlueChilli, hosted by inspire9, and ably compered by Leni Mayo; and in place of the usual Startup Alley was a team of experts offering free advice to startups, organised by Two Square Pegs.

As well as showcasing its latest developments in nano-technology, materials, fabrication, energy generation and workplace automation, CSIRO wanted to remind the audience that they have development and test facilities, which are available for commercial use at very economic rates to the right sort of project. It’s all part of a broader charm offensive, in part designed to raise awareness of the great innovation that has come out of CSIRO (e.g., WiFi…), in part to counter the challenges of reduced government funding ($111m in cuts over 4 years).

To me, CSIRO would appear to be pretty good value for money based on the $700m+ government contribution (which probably accounts for about 70% of current budget). CSIRO generates income from industry for research and other services, and earns royalties from patents and other IP it licenses. But its challenge is to demonstrate its true economic value, either as a contribution to GDP, or as a return on investment to the government (and to the wider community).

On the one hand, CSIRO is not an investment vehicle – yet on one level it operates as an early-stage VC fund, identifying which projects to “invest” in, and securing commercial returns via patents and other licensing streams. Nor is CSIRO a listed company, but without the benefit of its research and inventions, many companies traded on the ASX might not be as financially successful.

Ironically, CSIRO has been involved in research on the future of Australia’s $1.4tn superannuation assets – part of the effort to work out how to put these assets to better use, both to generate more sustainable income for Australian retirees, and to ensure the nation is investing in the right sort of infrastructure, innovation and international growth opportunities.

Traditionally, superannuation funds and other institutional investors have shied away from early-stage projects, especially home-grown startups, either because they are deemed too risky, or because the technology is not well understood. Yet some investors are willing to allocate part of their funds to Silicon Valley VC’s, only to see some of that money flow back into innovative Australian startups (a phenomenon I have previously described as an “expensive boomerang”.)

I’m no economist, but if there was some analysis done on the value of the “CSIRO Dividend”, it would both be able to secure current government funding, and attract long-term funding via the Future Fund or similar investment vehicle.

Post Script: Soon after this post was published, the Federal Government announced its Industry Innovation and Competitiveness Agenda, which among other things is seeking to generate a better return on investment on for innovation.

Next week: The Three Pillars Driving the Online Economy

 

End to #geoblocking proposed in Competition Policy Review

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Australian consumers would benefit from key Recommendations contained in the Competition Policy Review Draft Report released last week – meaning better access to, and cheaper prices for digital content and tech products. In particular:

  • any remaining prohibitions on parallel imports would be abolished, unless there is a public interest factor in retaining them; and
  • Intellectual Property licenses would no longer be exempt from the requirements of the Competition and Consumer Act.

Introduction

I don’t propose to cover the whole scope of the Policy Review here – but instead focus on the practice known as geo-blocking, whereby customers in one jurisdiction can be prohibited from buying goods and services from another jurisdiction, simply due to their country of residence. (For example, Australian consumers are currently unable to purchase music downloads from Amazon’s dedicated Australian site, or from any of its international sites; and numerous titles listed on iTunes’ US and UK stores are not available for download via iTunes Australia.)

Context

It is now more than 20 years since the Hilmer Report (which led to the National Competition Policy), and as last week’s Draft Report states, much has changed since then in terms of new technology, market globalisation, the Internet and the digital economy. (Back in the mid-90s, before Amazon, PayPal and eBay, I recall having to buy from overseas via e-mail – including the payment information!)

The Review Panel, under the Chairmanship of Professor Ian Harper is to be commended for the speed of its draft review, and the breadth and depth of its Draft Recommendations, which cover a full range of structural and regulatory reforms. The Review was announced in December 2013, and based on current performance, is on target to deliver its Final Report within 12 months of being launched. (But I don’t expect much to happen by way of legislation until after the next Federal Election in 2016.)

The end of geo-blocking?

Most notable for the purposes of this article is Draft Recommendation 9 – the removal of any remaining prohibitions on parallel imports. Since this is a rather technical aspect of IP law, and because the proposal seeks primarily to benefit consumers, any reforms in this area will require extensive public education initiatives.

For example, some current restrictions on parallel imports may relate to health and safety issues (e.g., electrical items sourced from overseas which are not designed to run on Australian power supplies); others appear to be merely the capricious whims of trade mark owners, copyright holders, IP licensors and their licensees, designed to create artificial market barriers, especially when it comes to product pricing and availability).

So, if consumers and businesses are going to benefit once parallel imports are fully legitimized, they will need help in understanding their rights and obligations under the proposed reform. By way of example, if I can’t download a movie from iTunes Australia, and if this content is not available via any other local online store, can I force Apple to sell it to me if it is available in another iTunes store (and at a truly comparable price)? Can I seek to buy a copy directly from the copyright owner or from the locally licensed distributor, even though neither of them have chosen to make it available in this market?

Shades of Grey?

Parallel imports (also known as “grey market goods”) are not the same as counterfeit or pirated goods – grey goods are authentic and otherwise legitimate products originating in one country that have not been specifically licensed for direct sale or distribution into another market. Given that local consumers can already access many goods from overseas online retailers, and since items bought for personal consumption are generally not caught by the ban on parallel imports, there are already ways to get round these obstacles. (For example, Levis Australia does not import all sizes of its jeans for sale in the domestic market, but a careful search on eBay can usually uncover a retailer in the US willing to ship direct – and probably cheaper than buying locally if available, even allowing for shipping costs).

The bum deal for Aussie consumers

In its Issues Paper released in April this year, the Review Panel highlighted the impact of international price discrimination on Australian consumers, which in my view is a direct consequence of both the ban on parallel imports and restrictive IP licensing practices:

“A further issue in relation to imports is international price discrimination. International price discrimination occurs when sellers charge different prices in different countries and those prices are not based on the different costs of doing business in each country. A recent parliamentary inquiry found that Australian consumers and businesses must often pay much more for their IT products than their counterparts in comparable economies, in some cases paying 50 to 100 per cent more for the same product.” (1)

Noting that price discrimination is not specifically prohibited under Australian competition law, the Issues Paper also acknowledged that consumers and businesses alike already circumvent this “legitimate” trade practice via parallel imports, despite the potential legal and other risks.

Redefining the market

Unsurprisingly, the Draft Report does not recommend a ban on international price discrimination (2), mainly because of the cost and difficulty of enforcement (similar arguments have been made against lowering the GST-free threshold on online imports). And yet the Review Panel is in favour of extra-territorial reach under the Competition Law (making it easier to pursue legal action against off-shore parties). It also suggests redefining the scope of “competition” to include markets for goods and services that are “capable” of being imported or supplied into Australia (Draft Recommendations 20 and 21).

Delivering the desired outcome

Consequently, for Draft Recommendation 9 to have any real impact, it must facilitate consumer and business access to goods (especially technology, software and other digital content) that have not been licensed for direct sale or distribution in Australia, either because the overseas manufacturer chooses not to make it available in the Australian market or because the local licensee/distributor chooses not to supply it (or not at a comparable price). In other words, it should not be more onerous (or expensive) for an Australian customer to acquire legitimate goods from overseas if an off-shore supplier is willing to fulfil local orders direct. (Expect huge resistance from the global tech suppliers – who are probably concerned about the implications for transfer pricing and other international tax issues; and await a backlash from the FMCG sector – where some companies have already been disputing territorial control over sales of instant coffee.)(3)

Related reforms

Along with the repeal of Section 51(3) of the Competition and Consumer Act 2010 (to bring IP licenses within the purview of the Act – Draft Recommendation 8), the Draft Report also proposes a thorough review of Intellectual Property law in light of “new developments in technology and markets” and their impact on competition (Draft Recommendation 7).

The latter recommendation can be linked not only to the practice of geo-blocking, but also to the emergence of the shared economy, aspects of which challenge traditional notions of markets, vertical supply chains, business models, ownership and licensing.  Elsewhere, the Draft Report comments on the significance of services like Uber (which has faced industry resistance since launching in Australia).

Conclusion

Most importantly, the Review Panel is keen to ensure Australia has a more relevant (and robust) IP regime that both encourages innovation and enhances market competition. A positive start would be an end to geo-blocking.

Footnotes:

(1) Source: The Australian Government Competition Policy Review – Issues Paper, April 2014, Chapter 2.6 (emphasis added; see also my earlier blog).

(2) It is worth noting that price discrimination is prohibited within the EU.

(3) The full ACCC Decision can be found here. Makes for interesting reading.

NEXT WEEK: What is CSIRO up to?

 

F for Facsimile: What are ‘Digital Forgeries’?

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Last week, I attended the 2014 Foxcroft Lecture, given by Nicholas Barker, entitled “Forgery of Printed Documents”. The lecture prompted the question, what would we consider to be a ‘digital forgery’?

Make Up

The lecture was an investigation into a practice that emerged in the 18th century, when reproductions (‘fac similes’ – Latin for ‘make alike’) of early printed texts were created either as honest replicas, or to enable missing pages from antiquarian books to be restored to ‘make up’ a complete work. In some cases, the original pages had been removed by the censors, for others the pages had been left out in error during the binding process, and mostly they had simply been lost through damage or age.

Other factors created the need for these facsimiles: the number of copies of a book that could be printed at a time was often limited by law (censorship again at work), or works were licensed to different publishers in different markets, but printed using the original plates to save time and money.

Despite the innocent origins of facsimiles, unscrupulous dealers and collectors found a way to exploit them for financial gain – and of course, there were also attempts to pass off completely bogus works as genuine texts.

Replication vs Authentication

Technology has not only made the mass reproduction of written texts so much easier, it has also changed the way physical documents are authenticated – for example, faxed and scanned copies of signed documents are sometimes deemed sufficient proof of their existence, as evidence of specific facts, or in support of a contractual agreement or commercial arrangement. But this was not always the case, and even today, some legal documents have to be executed in written, hard-copy form, signed in person by the parties and in some situations witnessed by an independent party. For certain transactions, a formal seal needs to be attached to the original document.

Authenticating digital documents and artifacts present us with various challenges. Quite apart from the need to verify electronic copies of contracts and official documents, the ubiquity of e-mail (and social media) means it has been a target for exploitation by hackers and others, making it increasingly difficult to place our trust in these forms of communication. As a result, we use encryption and other security devices to protect our data. But what about other digital content?

Let’s define ‘digital artifacts’ in this context as things like software; music; video; photography; books; databases; or digital certificates, signatures and keys. We know that it is much easier to fabricate something that is not what it purports to be (witness the use of photo-editing in the media and fashion industries), and there is a corresponding set of tools to help uncover these fabrications. Time stamping, digital watermarks, metadata and other devices can help us to verify the authenticity and/or source of a digital asset.

Multiplication

In the case of fine art, the use of digital media (as standalone images or video, as part of an installation, or as a component in mixed media pieces) has meant that some artists have made only a single unique copy of their work, while others have created so-called ‘multiples’ – large-scale editions of their work. (The realm of ‘digital works’ and ‘digital prints’ produced by photographers and artists is worthy of a separate article.)

Making copies of existing digital works is relatively simple – the technology to reproduce and distribute digital artifacts on a widespread scale is built into practically every device linked to the Internet. Not all digital reproduction and file sharing is theft or piracy – in fact, through the wonders of social media ‘sharing’, we are actually encouraged to disseminate this content to our friends and followers.

The song doesn’t remain the same

Apart from the computer industry’s use of product keys to manage and restrict the distribution of unlicensed copies of their software, the music and film industries have probably done the most to tackle illegal copying since the introduction of the CD/DVD. At various times, the entertainment industries have deployed the following technologies:

  • copy-protection (to prevent copies being ripped and burned on computers)
  • encryption (discs and media files are ‘locked’ to a specific device or user account)
  • playback limits (mp3 files will become unplayable after a specific number of plays)
  • time expiry (content will be inaccessible beyond a specific date)

Most of these technologies have been abandoned because they either hamper our use and enjoyment of the content, or they have been easy to over-ride.

One technical issue to consider is ‘digital decay’ (*) – mostly, this relates to backing up and preserving digital archives, since we know that hard drives die, file formats become obsolete and software upgrades don’t always retrofit to existing data. But I wonder whether each subsequent copy of a digital artifact introduces unintentional flaws, which over time will generate copies that may render nothing like the original?

In the days of analogue audio tape, second, third and fourth generation copies were self-evident – namely, the audible tape hiss, wow and flutter caused by copying copies, by using machines with different motor speeds, and by minor fluctuations in power. Today, different file formats and things like compression and conversion can render very different versions of the ‘same’ digital content – for example, most mp3 files are highly compressed (for playback on certain devices) while audiophiles prefer FLAC. Although this is partly a question of taste, how do we know what the original should sound like? With a bit of effort, we can re-process an ‘original’ downloaded mp3 into our own unique ‘copy’ which may sound very different to the version put out by the record company (who probably mastered the commercially released mp3 from studio recordings created using high-quality audio processing and much faster data sampling rates).

So, would the re-processed version be a forgery?

(*) Thanks to Richard Almond for his article on Digital Decay which I found very useful.