There's been a few long posts on the Copyright Amendment Bill currently before Parliament. Thought it was time for a new index, if you are trying to navigate or looking for something specific. So here are the new posts:

• Click here for my analysis of/problems with the criminal enforcement provisions in the Bill, in particular, the issue of strict liability.
  
• Click here for my analysis of the limitation on the exception for research and study
• Click here for why the Bill doesn't allow the use of iPods, and here for my updated thoughts, highlighting that an exception that fits iPods might not fit the Microsoft Zune player
• Scroll to the next post for my updated thoughts on the new TPM provisions (OzDMCA)
  

There is also some material in my older posts on the Exposure Drafts:

• Click here for my general thoughts on the Exceptions Exposure Draft, including the exception for 'certain purposes' and the parody exception (both are unchanged in the Bill)
• Click here for some thoughts on the incorporation of the three step test into Australian law
  
• Click here for some earlier thoughts on the criminal enforcement provisions
• Click here for links to my various earlier posts on the anti-circumvention provisions, which, to some extent, have been superseded by the significant changes to the language in this area.
  

 
It's time, in this series of posts on the Copyright Amendment Bill, to turn back to my usual obsession: anti-circumvention law.

This is one area in the Bill has changed as compared to the Exposure Draft which I previously analysed. Some not insignificant changes have been made here, requiring some new thought. I've been asked what my views are on the way the Bill deals with things like region-coding and 'the Lexmark/Skylink garage door openers/printer cartridge' issue.

I'm afraid I have to differ somewhat with Brian Fitzgerald here. Brian has condemned the change to the law:

When the Exposure Draft of the proposed amendments was circulated three weeks ago it retained the important notion that a TPM is a device that prevents or inhibits copyright infringement. However when the legislation was introduced to parliament last week that requirement had disappeared. Now any technology used by a copyright owner “in connection with the exercise of copyright” will be protected - even if it does nothing to stop infringement.

This has enormous consequences for Australian consumers. What the High Court decided in Stevens v Sony was that copyright owners should not be able to invoke copyright law to enforce TPMs that control the “use” of lawfully acquired copyrighted material in ways that do not amount to copyright infringement. In doing so the High Court highlighted the importance of ensuring Australians have the liberty to use their legally acquired property as they wished.

In three short weeks the Stevens v Sony principle has gone from pedestal to garbage dump. The law as currently drafted will give copyright owners wide-ranging powers to restrict the use of copyright materials as they see fit.

I'm not so sure. It all depends on how the provision ends up being interpreted. Here are my summary (tentative) conclusions:

1. The law will be successful in preventing the printer cartridge/garage door opener cases, at least as we are currently seeing them.


2. The law will allow a court to make a sensible judgment about whether a TPM really is being used in connection with copyright. In doing so, an Australian court could draw on the reasoning in Stevens v Sony and the US cases on what doesn't fall within the DMCA.


3. It is not clear how much this law will be a problem if you wish to make competing, unauthorised devices which play or render DRM-protected media formats, such as DVDs, or iTunes songs - regardless of whether your device facilitates copyright infringement or not. It might be a problem. It might not.


4. To do them credit, the government appears to have fixed a big problem I pointed out with the interoperability provisions (not claiming credit, just noting that the issue has been solved) (although there is a drafting error needing fixing).


5. This law does nothing for the person who wishes to make 'fair dealings' of copyright-protected and DRM-protected material. If you wish to 'splice' protected stuff in, even if it is a fair dealing, you will have to find unprotected formats, however you can. This last, however, was probably inevitable.


6. Particularly in relation to the latter issue, much will also depend on the attitude that the Department takes in exercising their power to make ad hoc exceptions to the access circumvention ban. If they take an approach protective of user rights, the availability of ad hoc exceptions is the potential dark horse of these laws in Australia.

Below, the detail that supports these summary conclusions. As always, I'm open to being corrected on any of the conclusions below. Another long one, so next post is here.Read more »

 
Brian Fitzgerald today has an article on Online Opinion that summarises, in a very readable form, quite a lot of what I have been saying over the last couple of weeks on this blog about the Copyright Amendment Bill 2006.

 
Regular readers may recall that a little while ago I blogged about the Exposure Draft which contained the new Enforcement regime for copyright law. You can find that post here. It was pretty brief. But it was quite critical of one key thing, and that is the introduction of offences of strict liability.

Offences of strict liability, by the way, are offences which do not require a mental element, or mens rea. That is, you don't have to intend to do wrong, or be reckless about whether you are doing wrong. You just have to do the act.

I should note, that that offences of strict liability are not the same as offences of absolute liability. In Commonwealth Criminal law, offences of strict liability do have a defence mistake of fact. That is, if you (a) considered whether or not facts existed, and (b) are under a mistaken but reasonable belief about those facts, and (c) if the facts existed, there would be no offence, then you are ok. Note, you must turn your mind to the issue, for the defence to apply.

Anyway, I've had some feedback on that particular post. Yesterday, I was having a bit of an argument with someone about whether the introduction of strict liability was really that big a deal. Today, I was speaking to someone else again. Combined, my interlocutors raised several points:

1. We have strict liability offences for other property offences. what's different about copyright?


2. The offences apply to commercial conduct, not the kinds of things that ordinary people do, and it is right to treat commercial operators who are infringing copyright on a commercial scale as criminally liable.


3. Strict liability may be needed because you have people - say, the lowest link in the copyright infringement foodchain, like the guy at the market selling the infringing stuff - who may not know what they are doing is infringing, who never turn their minds to the issue at all. Or perhaps we have the guy with the backyard business in burning CDs. He's not thought about copyright either. But what he is doing is wrong, and we want a way to send that message without being completely draconian about it and sending the guy to jail. On this reasoning, what we want, perhaps, is a system of graded penalties - in particular, low-level on the spot fine type penalties - that can be used against this kind of individual, without the whole rigmarole of the court process, but which can be used to send a clear, direct, immediate message that this is wrong, criminal, infringement.


4. It is not feasible, or desirable, to have just one level of offence and one level of penalty. Far better to have a graded system of strict, summary, and indictable offences - with only the latter two carrying the risk of jail time.


5. What are the situations where, under these laws, they might have unintended reach or consequences? Can you identify situations where the laws would reach, but the resulting penalty would be inappropriate?

These are valid points, and valid questions. They require some thought, and some words, to answer them. I could do it directly, via email, to my interlocutors. But I also know, from speaking to various other people on the phone, that the criminal provisions are one area that people have not had the time, or the understanding, to consider in depth. 87 pages of provisions, which are repetitive, and written in an unfamiliar style, are hard to analyse in a very limited period of time. So I've decided to blog my issues, and questions, in the hope of offering people some thoughts, some issues, and starting, if appropriate, a conversation if my fears are considered unfounded. But I note this qualification: if any of the following is incorrect, I apologise, and offer to correct it - just email me.

This is a long post. If you're more interested in more about the copyright amendment bill and the iPod, scroll down or click here.

1. We have strict liability offences for other property offences. what's different about copyright?

We do indeed have offences of strict liability in relation to offences regarding physical/tangible property. We even have 'strict civil liability' (in the sense that you can infringe copyright even though you don't know you are. You will, in those circumstances, be exempt from paying damages).

However, the imposition of strict criminal liability is unprecedented, so far as I am aware, at least in common law countries. One US professor I emailed about it - someone with considerable history and knowledge of the copyright system over there - confessed himself 'shocked' by the idea that you would have strict liability.

Why is that? It is because copyright is different from other property. It really is, despite what some people say. It is intangible. It is artificially constructed by law. You can't see the boundaries of copyright to walk over them. You don't get some kind of signpost to the fact that you are infringing in many circumstances. Hop over a fence and you know that you are trespassing. Take an apple from someone and you know that you are depriving them of the apple. Instinctively, morally, we know that taking - or interfering with - the tangible property of another is a wrong.

It's just not the same with copyright. We don't necessarily know when we overstep the boundaries of this law. Do people really know that performing a song in public - or playing a legitimately purchased record at their office Christmas party is an infringement? That making a recording of their colleague singing in the shower - or in a public park - then putting it online could be an infringement of their colleague's performers' rights? The borders aren't tangible, nor are they are natural - they are artificial, and the law isn't easy to understand. As a blogger on copyright, I cannot tell you how often I am asked questions - basic questions - about copyright. The level of misunderstanding is deep, and pervasive.

Now one obvious counter to this is - well, that's fine. All that means is that we need to educate people better about what copyright entails. That's a matter of education, in other words - not a justification for treating copyright differently from other property rights.

But you know what? As a response, that really doesn't cut it. Firstly, because under the stewardship of the present government, copyright law has become immensely more complicated. It is simply not possible to explain copyright in simple terms. Ordinary people shouldn't have to learn these complicated rules in order to avoid criminal liability.

And second, why should the order be criminalise first, educate later? Why try to 'educate' people by holding over them the Sword of Damocles of a criminal penalty? Criminal law earns disrespect when it contravenes people's moral sense. Frankly, at the moment, people have quite a lot of disrespect for the copyright law. People are likely to have even more disrespect if told that you can be a criminal for contravening these artificial and intangible rights where you didn't know what you were doing was wrong. I think with copyright that, at least where we are talking about the general public (and not the nasty evil counterfeiters), we need to tread a little softly. Copyright depends on goodwill for its enforcement, because it is so easy to transgress. We need to handle that goodwill with respect, and treat ordinary people with respect, in the way we draft the laws. Threatening them with criminal liability is not a good way to earn goodwill.

And it's a shame, because I think that over time a lot of people have come to realise that selling infringing CDs at the market really is a crime. Education in that respect is working. I think a lot of people think mass file-sharing is wrong. But when the law fails to differentiate between these and far less obviously morally wrong scenarios, we are in trouble. As I outline below, I think the law fails to differentiate.

And it's interesting, too, because so far we have differentiated between morally culpable and other conduct - and we have done that in part by having a requirement of mens rea or intention. The ignorant have been safe. No longer. That's why I think there is a problem.

2. The offences apply to commercial conduct, not the kinds of things that ordinary people do, and it is right to treat commercial operators who are infringing copyright on a commercial scale as criminally liable

The second objection I received was this - that the criminal offences apply to commercial conduct only, not things ordinary people do. There are at least two answers to this.

The first is that not all activities that fall within the broad umbrella of 'commercial' are necessarily activities which you might think were criminal/morally culpable. Remember - individuals sometimes sell or advertise stuff. The example I gave in my previous post was the example of selling your iPod, where some music still happens to be on it. That involves, I think, selling an article (which includes electronic copy) which is an infringing copy (according to the new format-shifting exception).

Second, it's actually not true. There are a series of offences under this law which apply in the absence of a commercial motivation. To give you a list (noting those where strict liability applies):

1. engaging in conduct which results in one or more infringements on a commercial scale which have a substantial prejudicial impact on the copyright owner (s132AC)


2. distributing an article which is an infringing copy to the extent that the distribution affects prejudicially the copyright owner (s132AI) (strict liability applies)


3. making or possessing a device, intending it to be used for making an infringing copy of a copyright work (s132AL) (strict liability applies, so if the device is to be used for making infringing copies, you can be liable).


4. causing a work to be performed in public, or a sound recording or film to be seen or heard in public, at a place of public entertainment (ss132AN and 132AO) (strict liability applies. It does not say on the face of the legislation that you have to own or run the place of public entertainment)


5. making a recording - directly or indirectly - of a performance without the permission of the performer (ss248PA and 248PB) (strict liability applies. note that the performer does not need to be professional);


6. communicating an authorised recording of a performance to the public (s248PC) (strict liability applies)


7. causing an unauthorised recording of a performance to be heard in public (s248PD) (strict liability applies)


8. possessing recording equipment intending it to be used to make an unauthorised recording of a performance (s248PE) (strict liability applies - so possessing equipment to be used for that purpose is an offence)


9. copying an unauthorised recording of a performance (s248PF) (strict liability applies)


10. distributing an unauthorised recording of a performance, where the distribution will prejudicially affect the financial interests of the performer (s248PJ) (strict liability applies)

We think that the criminal offences apply only to commercial conduct - guys in markets - but we are wrong if we think so.

Third, and perhaps even more troubling, is the problem of the device provisions and other 'indirect' provisions. One thing the government often says it wants to do is to encourage innovative small business. However - in an environment when many private copies remain infringements - when it becomes criminal to make or possess a device for making infringing copies - or an indictable offence to engage in conduct that results in substantial infringements - you create a major deterrence to businesses interested in providing innovative software or devices that make use of content in interesting ways. remember the iPod. Is it not a device for making infringing copies under current law? And even if we write a law to fit the iPod and allow it, what about the next such device?

3. Strict liability may be needed because you have people - say, the lowest link in the copyright infringement foodchain, like the guy at the market selling the infringing stuff - who may not know what they are doing is infringing, who never turn their minds to the issue at all.
4. It is not feasible, or desirable, to have just one level of offence and one level of penalty. Far better to have a graded system of strict, summary, and indictable offences - with only the latter two carrying the risk of jail time.

The third and fourth issues raised by my interlocutors were that strict liability may be necessary to create small-time offences - little infringement notices - to people who have never really turned their mind to the issue of infringement. Coupled with this is the fact that it is better to have a graded set of penalties - leaving room for escalation and encouraging police to get more enthusiastic about enforcement.

These arguments are harder to answer than the previous two. I do think there is something to the fact that you want police to have a range of tools at their disposal, particularly to send a clear, unequivocal message to the lowest microbes in the foodchain where there is a genuine web, or chain, of copyright infringement. I get that, I really do.

I do wonder whether such people are likely to respond to infringement notices. To the extent that they know they are doing wrong, it might seem a little weak - another mere cost of doing business. To those who are not aware, the fine is not insignificant - over $1,000. Per offence. Which at least in theory means per infringement. That can escalate pretty quickly. If you sell, say, 10 burned CDs, each with 8 tracks, you are already talking about $105,600 as the potential on the spot fine – and that’s just for the sound recordings, let alone the infringements of the musical work (assuming here that there is no numerical limit on the on the spot fine - this could be wrong; we don't have the regulations yet).

I also wonder whether in fact the whole strict liability-on the spot fine system is the best answer to this. the purpose, one assumes, is increasing the level of deterrence by making a penalty more likely. You could do that by increasing the likelihood of these small fines - but I wonder whether a better solution isn't more enforcement of the offences with a mental element. And I am thinking, here, not about the state devoting more resources, but about more use of private criminal prosecutions, which have been used in countries like the UK. At least that way we wouldn't be sacrificing the general principle - which I argued for above - that criminal liability should have a condition of awareness, because copyright is different.

I also question - already detailed above - whether it is a good idea to put criminalisation before education and public support. Move too far ahead - particularly in the current climate, and particularly if 'ordinary acts' are captured - and you risk miring copyright further in disrespect by ordinary people. I don't care if counterfeiters don't respect the law - or at least, I agree with enforcement against them. What I care about is when copyright gets a bad name for itself by criminalising ordinary acts.

5. What are the situations where, under these laws, they might have unintended reach or consequences? Can you identify situations where the laws would reach, but the resulting penalty would be inappropriate?

The final question I was asked was this: can you think of situations, captured by the current draft provisions, which are truly problematic? What, in other words, is the real potential and problematic effect - perhaps the unintended consequences - of these laws?

This, too, is hard to answer because it asks me to prognosticate; to imagine situations. Here's a list of what I've come up with so far. Email me if you are wondering about more:

1. Section 132AL makes it an offence of strict liability to make or possess a device which is to be used for copying a work or other subject matter, where the copy will be an infringing copy, and copyright subsists in the work or other subject matter at the time of the possession of the device.
   The thing to note about this provision is that it does not require, on its face, that the device have the sole or dominant purpose of making infringing copies. Isn't a PC a device to be used for making copies? At the moment, isn't an iPod? And who has to make the copies - could parents be liable because they know or suspect their child may infringe copyright on the family computer?


2. s 132AH makes it an offence - of strict liability - to import (for sale) infringing copies.
   My issue here is that infringing copies includes legitimate copies made overseas but imported contrary to bans on parallel importation which still apply to some copyright works, like films. Making this an offence of strict liability has the potential to catch people who are not aware of the finer points of parallel importation rules, right?


3. Section 132AI makes it an offence to distribute infringing articles to an extent that affects prejudicially the owner of copyright. It's an offence of strict liability too.
   This covers file-sharing (because 'articles' includes electronic copies) potentially. But it's not just that. It would cover those situations where you put a file on your website, unawares.


4. The whole section for the unauthorised recording of performances bothers me. Many are offences of strict liability, requiring no commercial motive.
   My issue here is that it makes all those teenager fans who go to the Big Day Out with their mp3 recorders criminals. Even before they record, since they possess equipment intending to make an unauthorised recording. And remember - offences of strict liability. Actually, facetiously, I'm wondering whether it makes parents at the school play criminals too...


5. Last post about this, I posited the scenario of playing music at your wedding. I was taken to task about this. I'm not sure about the effect of the provision. Under s 132AO, it is an offence to cause a sound recording or film to be seen/heard at a place of public entertainment, where causing that hearing/seeing infringes copyright. This is a strict liability offence. The question - and I don't know the answer - is do you have to be in control of the place of public entertainment? In other words, would this apply to the ordinary individual who puts speakers on their iPod to play a song for their friends while they are present at an amusement park, pub, or public venue?


6. Under s 132AC, it is an offence (indictable or summary – there is no strict liability here) if a person intentionally engages in conduct, which results in one or more infringements of copyright, the infringements have a substantial prejudicial impact on the copyright owner, and the infringements occur on a commercial scale.
   I'm not sure of the scope of this. Does it apply:
   - to a person who put copyright-infringing material on their (high traffic) website?
   - to a person who put a link to copyright-infringing material on their (high traffic) website?
   - to a person who sold or provided a computer program which could be used to infringe copyright? or
   - to a person who sold or provided a computer program which could be used, if a well known and readily available patch was inserted, to infringe copyright (with insertion of that patch being a highly foreseeable consequence)?
   I just don't know.

More generally, I have a concern about these provisions. And that is the multiplier effect. The fact is, that these offences apply to each infringement. The problem is that if you sell, say, 10 burned CDs, each with 8 tracks, you are already talking about half a million as the maximum fine (or $105,600 as the on the spot fine) – and that’s just for the sound recordings, let alone the infringements of the musical work). back when the Copycats report was done by the House of Reps Legal and Constitutional Affairs Committee, the Committee recommended clarifying the law, to ensure that it was clear that each infringement could be a separate offence. At that time, strict liability and on the spot fines were not being posited. At the time, this was one of the ways the Committee recommended to make enforcement, and deterrence real.

Now we have another multiplier effect. And that is that in the usual 'law and order auction', we have new changes - strict liability, on the spot fines - imposed on an old set of changes - individual offences - resulting in a truly horrific potential set of penalties, way out of proportion compared to other fines for other property offences. And that is just wrong. I would like to see some serious limits placed on these fines, and the on-the-spot fines, in the form of regulations or rules, to ensure that threats of suicide-inducing fines cannot be sent or orally made to people.

One final point. Some of the provisions have defences for public institutions like libraries, archives, galleries, cultural institutions, educational institutions acting lawfully. Why aren't these defences general. I'd like you to imagine the following situation.

You run a historical museum. You have an amazing collection of old love letters from the Front in your collection. You run an exhibition of said letters. It is wildly successful. People keep asking for copies. You want to create a brochure. You cannot possibly trace the copyright owners. Hence, you know you are infringing copyright – or at least, that there is a substantial risk that you are. You decide to go ahead. Let’s say there are 9 photos of letters in the catalogue. Let’s say you sell the catalogue. What is your potential criminal liability?

I've thought about it. I remain deeply opposed to strict liability in copyright, because I remain of the view that copyright is different. I've also tried to show that the effect of these rules is perhaps not what people think. I stand ready to be corrected on anything I've written, because I'm not a real expert on the criminal law.

 
Regular readers may recall that last week I blogged the fact that proposals to change Australian copyright law to allow some format shifting - touted as allowing people to use their iPods legally - did not, in fact, fit how iPods work. It was good of course to see that there was some response to this issue (whether my commentary, or someone else's) by the government: in the second reading speech for the Copyright Amendment Bill, we have Attorney-General Philip Ruddock making the following comments:

I note there has been some commentary on the technical aspects of the exposure draft of the bill in relation to format shifting to iPods. That is why the drafts of this bill were made publicly available for comment. The government will listen to and consider comments and make any necessary technical changes to ensure the bill achieves the government’s objectives.

That's good. I hope they're talking to the Zune people too. Zune is the Microsoft 'answer' to the iPod. Like Apple's system, Zune will provide an 'integrated music/device system' - a player, a music store, and the ability to play mp3s ripped from personal CDs. But Zune comes with another twist. To quote a story from USA Today:

'Zune owners can recommend song favorites by zapping them to each other's unit wirelessly — but the shared songs come with heavy restrictions. The transferred song will be playable for up to three days or three plays. After that, the song expires....
The Zune three-plays rule even applies to songs that are not copy-protected songs — for instance, a recording of yourself playing the piano and singing.' [by the way, mp3s ripped from CDs are also unprotected].

So think about that use in terms of the Exposure Draft. Assume that the song is ripped from a legitimately purchased CD owned by Sharer. Sharer wants to zap the really cool song to Recipient. Recipient is a friend, not a 'household member' or family member of Sharer.

• the copy on the original owner's Zune is the 'main copy'. It is perhaps legitimate (let's assume, for the moment, that Zune doesn't require keeping songs on your PC (or, they fix that problem with the Exposure Draft).
• But the copy on Recipient's Zune - well, that's a copy made from a 'main copy'. That means it's not excused under the Exposure Draft. oh dear. Even if you can't make further copies from the file on the Zune. And despite the fact that it will expire, and so is a temporary copy. Temporary copies are infringements, you see, under our copyright law, maybe under our old law pre FTA, but certainly under the bright shiny post-FTA copyright law.
  
• What is more, let's hope that the 'zapping' isn't a communication by wireless means to the public. Assume if we are talking close friends it isn't a communication.
  

Is this a problem? Well, it depends what you are trying to do with the law. If you are trying to legitimize iPods in the current form, who cares what the Zune does? but if you are trying to more than that, yes, this is a problem.

According to the Attorney-General, the law will be amended in order to ensure that it will achieve its objectives. So let's look at what the Explanatory Memorandum says the law is trying to do. According to that document, here is the reasoning behind the exception:

(1) the "principal objective is to ensure that exceptions and statutory licensees in the Act continue to provide reasonable public access to copyright material"

Well, that one just begs the question of what is 'reasonable'. It doesn't really help us decide whether a Zune-type feature should be allowed.

(2) there is a need to recognise common forms of private copying that do not undermine the economic incentives provided by copyright.

Does Zune-type copying undermine economic incentives? well, you would think not, right? Because if the sharing is 'hey, this is a cool song', the hope is that Recipient will go and buy the thing somewhere (CD, Zune store, or by going to concerts). There is also the question, though: is the aim to recognise common forms of private copying now, or common forms that might emerge or are about to emerge?

(3) Many ordinary Australians do not believe that 'format-shifting' music they have purchased for personal use should be legally wrong with a risk of civil legal action, however unlikely. Fialure to recognise such common practices diminishes the respect for copyright and undermines the credibility of the Act.

It is submitted, your Honour, (a) that most people would not think Zune-type sharing should be legally wrong, particularly since it is coming on a device from Microsoft, (b) that the law is less credible (i) when it fails to allow regular, legitimate technology to be used legitimately, and/or (ii) when the law is written to accommodate one kind of MP3 player, and not others.

(4) The failure to recognise the reality of private copying is also unsatisfactory for industries investing in the delivery of digital devices and services.

That last one is the kicker, by the way. You see, no one is going to sue Microsoft about this sharing feature, illegitimate as it might be under any law passed by the Australian parliament. But what about other, smaller device or software providers? Who can't offer other innovative features, because the law has been written to fit the older technology?

There is nothing in this bill for innovative companies. The law legitimates old technology, not new. And that says a lot about the priorities of this government.

 
I really did think that people must be joking when they talked about patents for tax limitation strategies. Really. Just on the face of it, the idea that the state might grant a monopoly on a particularly creative way of avoiding paying tax - ie avoiding providing the state's revenue - just struck me as so ludicrous as to be funny. That's why I expressed disbelief about the Grant case, and wasn't surprised by its outcome here in Australia. Such things = not patentable, and that seemed right.

Even yesterday, when I saw in the online news that this was an issue in the US, I was a little disbelieving that this could be a serious issue.

I admit it. I was just plain wrong on that. Take a look at this long, serious document, entitled Background and Issues Relating to the Patenting of Tax Advice, prepared by the Staff of the Joint Committee of Taxation, for the Subcommittee on Select Revenue Measures, part of the House Committee on Ways and Means, for a hearing in July 2006.

Beggars belief. Really. May we never reach that stage here.

 
Music Industry Piracy Investigations - the Australian group who investigate copyright 'piracy' - have a new website. It has all kinds of useful little tools, like 'Enforcement Kits' to assist Law Enforcement bodies, and descriptions of law relating to infringement.

One thing in favour of the site is that it describes 'piracy' as 'the deliberate infringement of copyright and/or trade marks on a commercial scale'. That is (correctly) narrower than some claims we've seen from the more militant owners.

But I'm really not sure about the 'Am I a Pirate' page, which has a whole lot of material on personal copying. The implication - though I can't see it in text - is that personal copying will make you a pirate. Ick.

 
I'm looking in more detail at the Copyright Amendment Bill 2006. Specifically, I'm looking at the provisions on the fair dealing exception for research or study.

When I looked at the Exposure Draft recently, I complained that:

'The strangest thing, I think, about the Exceptions Exposure Draft is what happens in part 4 (page 14 of the Exposure Draft as released). ...

It's not entirely obvious on a first reading (I missed it, when I first looked), but the effect of the changes to section 40 is to limit fair dealings when they involve making a copy of a literary, musical or artistic work that is in a published edition (ie, in a hard copy, professionally published version) or in a published literary work in an electronic compilation (eg, a database). In these cases, under the new law, any copy will only be a fair dealing if it involves a reasonable portion. And reasonable portion is basically defined to mean 10% of the pages or words in the work.

In other words, it is no longer a fair dealing for research/study to make a copy of more than 10% of a book. Ever.

So, now I've looked at the provision again, alongside the Explanatory Memorandum. I don't know that it does that anymore. In fact, I don't know what it does anymore. The drafting is so confusing, that I'm really, really lost. Really technical legal stuff follows. for regular blog-like transmission, click here for the next post.

By the way, going through this one provision, in a 220 page bill, in such detail, when there are bigger picture issues, may appear to be something of an exercise in pointlessness. I think not, for two reasons. First, s40 is the provision that allows students and others all over Australia to copy parts of books for their own personal research. In practice, this is an important exception.

What is more, looking at the confusion that will reign if this provision is enacted makes a broader point: the drafting of this Bill is extraordinarily bad. It fails to achieve, in this and other ways, what it set out to achieve. Now, I know that drafting errors do happen. Looking at this one, in isolation, makes me worry: that more generally, some decision, somewhere, has been made to just 'brazen it out' - wack the Bill through, and hope to make the best of a bad (drafting) job. Pass the Bill, in its current form, and we are setting ourselves up for confusion, and various disasters.

Big calls? Let me show you. I'll put the provision in the text, and insert my comments/explanations in italics. First, remember that s40(1) provides that a 'fair dealing for the purposes of research or study' is not an infringement. Section 40(2) sets out a list of factors that are to be taken into account in determining whether something is 'fair' when it involves making a reproduction. Now to the text of the amending Bill:

(5) Despite subsection (2), a reproduction, for the purposes of research or study, of a literary, dramatic, or musical wrok, or of an adaptation of such a work, that:
(a) is not contained in an article in a periodical publication; and
(b) is either:
(i) a work described in subsection 10(2) contained in a published edition described in that subsection; or
(ii) a work described in subsection 10(2A) in electronic form;

This first part of the provision sets up the scope: what we are talking about, here, is basically works that are not individual journal/magazine articles, but which are works 'contained in' a published edition longer than 10 pages long, or in electronic form. Let's just note, at the outset, that this concept of the work being 'contained in' the published edition is pretty weird. It suggests that where the published edition is of just one work (eg, a book), this provision doesn't apply at all. But to be fair, that's existing weirdness - s10(2) is in the same terms. but let's go back to the text. Having set up the scope, here comes the kicker: the reproduction:

is a fair dealing with the work or adaptation for the purpose of research or study if, and only if, the reproduction is taken under whichever of those subsections is relevant to contain only a reasonable portion of the work or adaptation.

So here's the strange bit. Section 10(2) and 10(2A) famously set up a kind of 'deeming' - setting out certain proportions of a work that are taken to be 'reasonable portions' of a work. Famously, they provide that 10% or less of the pages of a published edition is a reasonable portion. So you would think, wouldn't you, that the effect of this amending law is to say that a reproduction of something in a published edition can be a fair dealing if and only if it is 10% or less of the pages of the book, or a chapter of the book. That's what I said when I was complaining before. OK. But here's the EXTRA kicker. Check out the language of ss10(2), which I'll take as an example:

10(2) Without limiting the meaning of the expression 'reasonable portion' in this Act, where a literary, dramatic or musical work... is contained in a published edition of that work ... a copy of part of that work, as it appears in that edition, shall be taken to contain only a reasonable portion of that work if the pages that are copied in the edition:
(a) do not exceed, in the aggregate, 10% of the number of pages in that edition; or
(b) in a case where the work is divided into chapters exceed, in the aggregate, 10% of the number of pages in that edition but contain only the whole or part of a single chapter of the work.

Look at it. The language here is non-exhaustive, right? Things other than the magic 10% can be a reasonable portion. So, looking at it again tonight, I thought - well that's odd. I guess that means that in fact this new s40(5) isn't so limiting after all. It says that a dealing is a fair dealing if and only if it fits the 'reasonable portion' requirement. But that requirement/definition is open-ended. It still means 11% could be a reasonable portion, because of those magic words 'without limiting the meaning of the expression'.

But wait. No, that's not right. Because if you look more closely again, you will see that those quantitative limits - the 10% or chapter - are the bits that are, under 10(2), taken to be a reasonable portion. We are back where we started. I think. Assuming that the court accepts that when the new s40(5) refers to something being 'taken to be' a reasonable portion it is referring to the bits in s10(2) that follow that phrase. phew. But do you see my problem? 11% might be a 'reasonable portion' under s10(2), because s10(2) doesn't limit the meaning of reasonable portion. But 11% is not 'taken to be' a reasonable portion under s10(2) - only 10% is 'deemed' reasonable in this way.

And here's another thing. Tell me, on the current drafting of the new s40(5), whether you still have to go back to the s40(2) factors even if you have a reasonable portion. If you have a reasonable portion, is that a sufficient condition (9% is fair) or a necessary condition (9% is fair provided other requirements fulfilled)? There is no deeming element to the provision.

If the latter, then you might STILL, even at 9%, have to convince a court that your dealing is fair. To date, the 10% rule has given us some certainty of when you were safe. Pop goes that measure of certainty. Deeming provision becomes absolute limitation on what you can copy. On this reading, certainty is a one way street. Copyright owners are the only ones who get certainty - certainty of when their rights are infringed.

So we are all massively confused by this drafting. Let's see whether the Explanatory Memorandum helps. here's what the Explanatory Memorandum says:

New sub-s 40(5) makes the definition of 'reasonable portion' in sub-s 10(2) and sub-s 10(2A) exhaustive for the types of works it covers for the purposes [of - sic] s40. Thus if a portion satisfies the relevant definition of 'reasonable portion' in either sub-s 10(2) or 10(2A) it is definitively reasonable. If it fails the relevant definition, it is definitively not reasonable

Does that help you? No, me neither. How do you make a definition, which on its terms does not limit the meaning of 'reasonable portion', 'definitive'?

Here's the thing. I think what they meant to do was addres a criticism raised by Sam Ricketson in a paper he wrote a few years ago. Professor Ricketson's criticism, at the time, went along these lines:

• section 40(3) 'deems' certain dealings to be fair dealings
• a copy is deemed fair if it does not exceed a reasonable portion
• under 10(2), 10% or less is 'taken to be' a reasonable portion,
  
• BUT 10(2) does not limit what may be a 'reasonable portion'. You can copy >10% and still argue it is reasonable, and hence deemed fair dealing. And, there is no guidance in the legislation for when a copy of >10% would be a reasonable portion.
• What is more, because less than 10% is 'deemed' fair, you might be excusing uses which in fact aren't fair, having regard to the market for the copyright owners' works.
  

So I think the government were trying to say:

• reasonable portion is still a deemed fair dealing
• reasonable portion is <10%
• anything else, refer to s40(2).
  

That is, I think the government were trying to make the 'deeming provision' apply only to things less than 10%, with anything else subject to the requirements of s40(2).

But that' not what they've done. What they've done is make these definitions definitive of what constitutes a fair dealing (instead of making it definitive of what constitutes a reasonable portion, and then deeming reasonable portions to be fair dealings). Thus:

• if you copy >10%, you have no recourse. It's just not a fair dealing. Even if the book is out of print, and no copyright owner still in existence would be harmed;
  
• if you copy 9%, you have to consider s40(2).
  

And that, my friends, is the stupidity and confusion of it all. I consider myself a reasonable bright person, and a specialist in copyright law. I am really, really, confused by this provision. Imagine how many other people are going to be confused?

I reiterate the points I made above. The moral of this story is that the drafting of this Bill is extraordinarily bad. It fails to achieve, in this and other ways, what it set out to achieve. What, in a couple of years' time, will we discover this provision means? And what else are we going to discover, a year or two down the track?

[Update: Let me make one thing very clear about this particular provision. Nowhere, that I have found, in Sam Ricketson's paper, does he say that there must be an absolute 10% rule on what can be copied for private research/study. Ricketson's complaint was that the 10% absolute defence might excuse uses which are in fact unfair. It is arguable that Sam Ricketson's views, if accepted (and they are not universally held) require amendment of the quantitative rule allowing anything under 10%. But they emphatically do not justify limiting the fair dealing exception to an absolute limit of 10%.]

 
Regular readers may recall I've blogged about the Grant case - a Federal Court case concerning the Patent Office's refusal of an innovation patent for a method of structuring trusts etc so as to minimise tax. In general, when I've told people about this case, the reaction has been - what, someone tried to patent something like that? And it's going to court even?

And yet, look at this Friday post from Public Knowledge. Apparently, in the US, the newest practice in the patent field is the patenting of tax strategies, or advice on how to avoid paying taxes: that is, individuals and corporations are patenting tax strategies as “business methods.”

In Australia, these things are not patentable. In July of this year, the Full Federal Court held that there were multiple reasons to refuse a patent here:

• A physical effect in the sense of a concrete effect or phenomenon or manifestation or transformation is required. ...the alleged invention is a mere scheme, an abstract idea, mere intellectual information, which has never been held to be patentable, despite the existence of such schemes over many years of the development of the principles that apply to manner of manufacture. There is no physical consequence at all;
• "legal discoveries" are not patentable. The practice of the law requires, amongst other things, ingenuity and imagination which may produce new kinds of transactions or litigation arguments which could well warrant the description of discoveries. But they are not inventions. Legal advices, schemes, arguments and the like are not a manner of manufacture.
• In any event, the end result was effected by a mere taking of sequential steps, a collocation of integers rather than a new combination. Assuming novelty, the proposed scheme represents a new use of known products (a trust, a gift, a loan and a security) with known properties for which their known properties make them suitable (the creation of a structure of financial rights and obligations or even a change in the person’s legal circumstances). That is not the proper subject of letters patent.

Despite all of this, it would appear that these arguments are still doing the rounds in the US.

 
The Senate, yesterday.

Senator Bartlett (Democrat, Qld):

'Frankly, I am getting a bit tired of their continually voting for these ridiculously short reporting dates and then, when we get into the committee, they sit there and ask, ‘How the hell are we going to deal with this in such a short time frame?’ You have the power to fix the problem; we don’t. It is your responsibility. How about you take some? Another classic example—which is even worse—is the copyright legislation, which was referred to a committee before it was introduced into the parliament. We were being asked whether we supported its referral without knowing what is in it. There is a statement of reasons attached for the urgency—which was better than what we have had in the past, which was basically no reason at all—and the purpose of the bill but not the reasons for the referral. That legislation was introduced half an hour ago in the House of Representatives, and the reporting date is 10 November, three weeks away, two weeks of which are sitting weeks or estimates committees weeks. The only non-sitting week is next week, so that committee will have no opportunity to have a public hearing. I do not know whether that is a big issue but to give you half an hour to decide not just to look at the bill but to try to determine whether something is not in the bill—and then to give a ridiculously short time frame to examine it—is simply ludicrous. The process shows contempt for the Senate, but much more importantly it is contempt for the public and democracy.

Senator Ludwig (Labor, Qld):

When you look at [the Copyright Amendment Bill 2006], you see that it includes matters that go to the free trade agreement, and we understand that there is an urgent date for that to be dealt with. The government has also tacked on a range of other matters, including the fair use review. In other words, the content of this bill is sufficient to warrant an inquiry that allows people time to make submissions and for the committee to deal with them. The government is jamming the legislative program by using this tactic of referring bills to committee with a short turnaround time, without allowing time for this place to look at them. The shadow minister has not even had a brief in respect of this bill to be able to determine whether it even requires a reference to a legislation committee. This is an abuse of the process....

Indeed. Think about it:

• submissions by 30 October. that's about 5 working days for people to put together their submissions. OK, we've had the exposure drafts for some time - but this is a very complex bill, and the language is not, everywhere, the same.
  
• report by 10 November. that's about 8 working days for the Committee to deal with it. It's 220 pages. It's huge. It's complex. And it's in a technical, specialised area of the law.

Yup, it's a joke.

 
The final, official version of the Copyright Amendment bill has now been released. Misleadingly titled press release here. At a measley 219 pages, there is no way that this bill makes copyright 'more flexible'. In certain key respects, which I've commented on in the past, it takes away flexibility.

The bill includes:

• The TPM Amendments (the OzDMCA, or new anti-circumvention laws) - material that I've discussed
  
• The new copyright exceptions (outcomes of the iPod inquiry)
• The new copyright enforcement provisions; and
• Some stuff on signal piracy/pay television; and
• Some stuff on the Copyright Tribunal.
  

It is only now that we can see, altogether, the whole unholy complicated mess that this piece of legislation is. Just wait until you see the next edition of the consolidated Copyright Act.

The whole bill has been referred to the Senate Standing Committee on Legal and Constitutional Affairs. Submissions are due 30 October; the Committee will report by 10 November (and we assume, the Bill will pass in substantially unamended form shortly thereafter).

Information about the committee process can be found here.

Unfortunately, the Parliamentary Bills website's permalinks are useless, which makes it practically impossible to give you a link to the Bill. To get the bill, what you need to do is:

• go to BillsNet, which is here
• Click on current bills, either by TITLE (and go to the copyright Amendment Bill 2006) or BY PORTFOLIO and go to the AG's portfolio.
  

I'm really not sure that I will be making any kind of submission, given the timetables etc, and given the extreme apparent unlikelihood that anything that gets submitted to a committee turning around a bill that technical, that big and that complicated, that fast. However, my collected thoughts on the bill are, of course readily available due to the wonders of the web.

On anti-circumvention law, I've discussed already:

• the basic shape of the bill here, including issues of region-coding,
  
• the implications for consumers here (including more on region coding),
• whether the bill addresses cases like Lexmark (printer cartridges) here, and
  
• the issues of interoperability and the impact of these laws on interoperability here (summary: the provisions on interoperability may well be useless).

Interestingly, though, the government has changed the definition of access control TPM from that in the exposure draft. This will have some impact on my comments on region-coding and Skylink. Will have to think through implications of that... Unfortunately, they do not appear to have fixed the interoperability issue.

On the copyright exceptions:

• I've analysed the Exposure Draft here, and
  
• I've discussed the basic idea of including the three step test in legislation here (summary: it's appalling) and
• I've discussed why iPods aren't allowed under this legislation here.

On the copyright enforcement provisions, I've discussed:

• Why the bill is going to make quite a lot of ordinary Australians criminal, and subject to strict liability to fines) here.

If anyone has any specific questions about the Bill, I'd be happy to answer them - email me, or comment on this post.

 
IP Australia has an issues paper out on the new regulations to go with our new Trade Marks Act, which recently passed the various houses of Parliament. You'll have to be quick - they want comments by 1 November.

 
There's been more commentary on the IceTV case which I mentioned the other day (summary: television channel sues start-up providing TV programming data [ie, timetables of what time your shows are on] for personal video recorders, alleging copyright infringement of said program data). So if you are interested, go check out:

• Pete Black's original post
• Joshua Gans
• Me
• The Age story
  
• Techdirt's commentary
• IPKat (the commentary most sympathetic to Nine's action).

The IPKat notes that 'while Channel 9 might be preventing the development of a secondary market in such technology, unlike the ECJ’s Magill case, there is a good reason inherent in the nature of broadcasting for keeping this information back'. That's easy to say in a country where PVR systems are relatively well established.

It's worth noting some local context to this debate. It is now late 2006. TiVo, the famous digital video recorder (DVR, or PVR) that allows you to tape and watch shows at a time of your choice, had its IPO back in 1999. By 2003, TiVos were so known that the device formed an integral part of a Sex and the City Episode (Miranda gets TiVo, gets very excited; Season Six). In 2000, a TiVo service launched in the UK (although it later stopped, and the market was effectively taken over by other players).

Australia does not, at this stage, have a compelling PVR service [and by that, I mean PVR with all the programming data and information to make it simple to record what you like, when you like, without worrying] offered by any large commercial player. Yes, if you are technically literate, it is relatively simple to buy a PVR and tinker with it; IceTV have made this process simpler. There is Foxtel IQ, but the data doesn't cover all available channels (as I understand it, correct me if I'm wrong).

At least one reason for the slow takeoff is the problem of programming data - getting it, and the copyright issues. Welcome to the country where the television channels are so powerful, and so well protected by law, that consumers simply won't get the latest technologies if they interfere with that well-protected market. And don't even get me started on the other way media laws and licensing protect these big, powerful players.

[This opinion, by the way, is based on the facts as I understand them from following the debate over time as reflected in newspapers. Hey, if I'm wrong about any of these facts, please email me. I'd love to be corrected]

 
There's a lot of copyright-amending legislation floating around in Australia right now. The penultimate piece of the puzzle is the new law on copyright enforcement. You can find it on the Attorney-General's website, here, together with explanatory material.

The appropriate summary of this law is - my, what a long way we have come. Back when the Spicer Committee was considering what copyright law should look like - a consideration which led to the 1968 Act here in Australia, that Committee was, at best, luke-warm about criminalising copyright:

‘330. Some of us doubt the wisdom of inserting criminal provisions in a copyright Act. We realize, however, that they may be desirable in the case of an offender who is a man of little means. Also, it might be said that infringement of copyright somewhat resembles stealing, which is, of course, the concern of the criminal law. In addition, as the provision has been in operation for many years we are not disposed to recommend its repeal…’

How things have changed. Now, we have some unprecedented moves in criminal copyright enforcement:

1. there will now be offences of strict liability - that is, offences for certain commercial dealings in copyright material which do not require proof that the person knew they were dealing with infringing material;


2. a system of 'on the spot fines' for copyright infringement.

Read more »

 
Last year's review of copyright exceptions in Australian law was colloquially known as the iPod Inquiry. The Attorney-General, in announcing the review originally, specifically referred to iPods, stating that:

'Many Australians believe quite reasonably they should be able to record a television program or format-shift music from their own CD to an iPod or MP3 player without infringing copyright law. However, this issue needs careful consideration'

There were, of course, plenty of us pointing out the issue that iPod use constituted copyright infringement under Australian law - and that, while it was highly unlikely anyone would be sued for using an iPod, still, Australian representatives of copyright owners like ARIA were taking a more hardline approach in affirming this was infringement, at least in their public statements, than organisations, like RIAA, overseas. There were news stories like this one in the general lead up to the inquiry.

Then in May, when the Australian government announced the reforms it would be making, there was this claim in the media release:

'The changes will, for the first time... [l]egalise ‘format shifting’ of material such as music, newspapers, books – meaning people can put their CD collection onto IPods or MP3 players.

At first glance, it seems that the Exposure Draft has delivered: after all, if you look at the explanatory material that accompanies the Exposure Draft now released for comment, you will see that an exception (which I've discussed in more detail here) has been created to allow:

'...the owner of certain articles embodying copyright material to make a reproduction in a different form. This may be desirable so that the owner can take advantage of newer technolgoy (dubbing a VHS tape to DVD) or to use the copyright material in a differetn place (copying music to a portable MP3 player)'

Unfortunately - several commentators to my blog - and a commentator on a recent post by Patry have pointed out - it would appear that the exception has been too narrowly drafted actually to allow people legally to use their iPods. If the law is enacted in its current form, we will have to call it the little iPod Inquiry that couldn't.

Why is that? Well, under the format-shifting exception in the Exposure Draft, if you own an article, embodying a copyright work, you can make a 'main copy', and that 'main copy' is not an infringement if you fulfil certain conditions:

• you own the original article embodying the copyright work (that is, you own the CD and didn't borrow it from someone, and it's not an infringing copy like a pirate CD or a CD of music downloaded from Kazaa);
  
• the main copy is for your private and domestic use;
• the main copy is in a different format from the format in which the sounds are embodied in the article;
• any further 'main copy' made from the original is in another different format (that is, you can only make ONE 'main copy' in any given format);
• you don't make more copies from the main copy; and
• you don't engage in commercial dealings or dispose of the main copy or the original.

You are allowed, under the exception, to make 'temporary copies' which are incidentally made as a necessary part of the technical process of making your main copy - but you have to DESTROY those at the 'first practicable time during or after the making of the main copy'.

Now, if you are familiar with iPods, chances are you have already spotted the problem here. iPods require you to make two copies, and you have to keep both for your iPod to work. iPods purchased from Apple come with software, called iTunes. According to my informants:

• in order to shift music from a CD to an iPod, you put your CD into the computer, and iTunes asks if you want to make a copy;
• music from the CD is copied to the computer hard drive as MP3 files;
• these MP3 files can then be 'shifted to' the iPod so you can carry it around.

Now, this would be OK: if we assume that the copy on the iPod is the 'main copy', then the copy on the hard drive is incidental and necessary. But here's the kicker. It's not temporary. In fact, you can't 'destroy it at the first practicable time'. According to the comment received from one reader:

'Deleting the file from your computer will result in the song being deleted from your iPod next time it’s plugged in.'

It gets better. According to the same reader,

'iTunes 7 now includes a feature which allows you to automatically synchronise an iPod with more than one computer (with the same iTunes account) – this would presumably result in additional infringing copies being made on your second computer when the iPod is plugged in.'

[update: I'm also informed, by someone else, that if you have a problem with your iPod, and have to do a 'restore' (and we all know how this happens on computers), then all the songs are wiped from your iPod. Refilling your iPod will still be illegal under this lawbecause you are only allowed to make one 'main copy']

OK, well, maybe you could say that we have two 'main copies' - one on the computer hard drive, and one on the iPod. But no, that won't work, 'main copies' have to be made from original articles, not other main copies (the idea being to prevent serial copying). And of course this problem isn't dealt with by licensing - licensing allows all the copies you make from songs purchased from the Apple iTunes store - but not copies you make from your CD collection.

The commentatory on Patry's blog has another interesting point here. I'll quote:

'it confuses two parts of format, mixing coding with medium. MP3, Apple's AAC, and WAV are codings. They are representations of audio data. Plain-text, HTML, and Word Doc are codings also. CDs, Hard Disc Drives, and paper are media. I can put a work in most codings on most media---though some are more efficient than others. It does little good to print an MP3 on paper.

It also does little good to print a Word Doc on paper---I have to use the Word program to translate from that coding to a coding understood by the printer, then transmit that. The coding on the paper is Formatted English Text, more or less.

Sometimes we pair a coding with a medium and call it a format. One such pairing is CDDA, Compact Disc Digital Audio. That's a WAV file on a CD, more or less. We might consider MP3-on-iPod to be a format also. But it sounds like they're considering all MP3s to be one format.

So what happens when I copy a song from a CD or tape to my iPod? First it's raw audio on a CD. I use a program to rip that, copying the raw audio into my computer. Then I use a new program to copy that, shifting the coding from raw-audio to MP3. Now I run a new program to copy this MP3 to my iPod. At the end, the MP3 on the hard drive and the MP3 on the iPod persist. Apple's iTunes program manages all these three copyings and the coding shifts, but they're there.'

What this comment raises is a fairly basic question: what is a format, exactly? Is a WAV file a different 'format' from an MP3 file? Do we identify a different 'format' from the different file extension at the end? Or are all digital formats different? I'm not sure I agree with the commentator on Patry's blog - I think there is an understanding of the term 'format' that looks at different 'codings' and considers them different 'formats' (see, eg, the Wikipedia entry on 'file formats'), but it's not exactly clear just what counts as a format.

Now, no doubt plenty of people have already pointed all these issues out to the Attorney-General's Department. Maybe the drafting has already been fixed, before it goes to the Senate. Or maybe not - maybe this will be kept in the current draft (dangerous, because the Senate Committee could get so stuck on this silly issue that they bypass the many other issues with the Exposure Drafts, that I've pointed out in previous posts). Surely, it cannot be the case that the Explanatory Material will refer to MP3 players, and put forward draft legislation that won't work for an MP3 player which, by all accounts, dominates the market (over 70% market share, I understand).

Even if this gets fixed, there are some lessons to be learned from this drafting debacle. William Patry commented that

'part of the interest in the Australian endeavor [is that] most of our [US] rules (say fair use) were formulated at least in a general way long before the Internet and we have therefore been trying to update them in a common law way, i.e. by court cases. The Australians are doing it legislatively, where views beyond those just of litigants can be heard'

That is the strength of doing these things legislatively, no doubt. However, the fact that the legislation drafted doesn't, even now, actually work to cover common technologies used to do the things aimed at reveals the problem: because so many views are being heard, we are ending up with highly qualified, detailed, legislative language - which is so specific, that it fails to work. If it doesn't work on current technology, it won't work in the future, either. In an attempt to get certainty, what we have instead is technology specific, useless exceptions.

What the government should have tried to do is something that commentators like Robert Burrell and others were suggesting at the time of the inquiry. By all means, avoid fair use. But try also to avoid writing such specific exceptions that they work only for today's technology. Write exceptions with some open textured language.

A final lesson is that it appears the people in the Copyright Law Branch who drafted this legislation do not have iPods. I guess we should have given them MP3 players at the outset, so they could get used to the technology they were drafting for.

 
One interesting case that started its hearing today in the Federal Court in Australia - that a few people have been emailing me about - is the IceTV case. This case is all about compilations and copyright. The case is generating comment in the Australian blogosphere: Peter Black's coverage from Sunday, and Joshua Gans' post reproduced in Crikey today. Black provides some interesting background on the case, and in particular, on the attitude of media players other than Channel Nine - that is, the other people who did not sue. Just goes to show that so much about our caselaw is a result of plays and concerns outside the legal system. (don't forget that Nine was the initiator of legal action in our most significant fair dealing case of recent times, The Panel case, too). Gans is an economist, so you should ignore some of the legal conclusions and speculations he makes, but he rightly highlights that at heart, we do have a serious potential competition issue here, particularly if Nine were to win. In light of Gans and Black, more scarcely needs be said. But we all know I can't resist a good copyright case...

Unlike quite a few countries, Australia protects factual, 'whole of universe' collections of data with its copyright law. In the US, in the Feist case, the US Supreme Court held that copyright did not subsist in the White Pages phonebook - copyright, it was held, by protecting only 'original' works, requires a 'modicum of creativity' before protection will attach. In the European Union, legal protection for factual compilations, enacted via a 1996 Database Directive, has been read narrowly by the European Court of Justice, so that no protection extends to bodies which 'create' data (including telephone companies, sporting bodies which produce sports listings, and - according to the European Commission study late last year - television broadcasters who 'create' program listings. Only bodies which make a substantial investment in collection or verification of data are protected in Europe.

In Australia, when the Feist situation came up in a dispute over copyright in the White Pages phonebook, our courts answered the issue in the opposite manner - there is copyright here, our courts opined (Full Court here, Trial Judge here). The High Court refused special leave.

The IceTV case is really interesting for a couple of reasons. One is that in the White Pages case, the issue that arose in infringement was whether it mattered that the Desktop product didn't look like the Telstra White Pages (you know, not being a book and all). It was held that the visual similarity didn't matter. What the court didn't have to grapple with in Desktop is exactly when an alleged infringer will be 'copying' another's compilation of fact. How, exactly, are you allowed to 'gather' your compilation if you want to avoid infringement - particularly in a case where there is in effect a monopoly supplier of the original information? In Desktop, there was no question on the facts that the defendant was directly typing out the listings from the White Pages. That is, apparently, not the case for IceTV, which appears to get its information more indirectly than that. We might get some comments on just how one goes about infringing rights in factual compilations.

The other reason the case is interesting is when you imagine the scenario outlined by Gans - what would happen if (a) Nine won the copyright case and (b) Nine refused to license the data (as previous news reports appear to have indicated does happen). Could this be controlled - and if so, how? Where, exactly, is the legal tool for limiting behaviour like that which looks like an abuse of the copyright and an attempt to extend the power of the copyright owner beyond the original market? Is it competition law? Or does Australia need a doctrine, like that in the US, of 'copyright misuse' to limit a copyright owner's remedies where they are not in fact exploiting their copyright and want only to control another market? At least in Telstra, it was arguable that Telstra wanted to exploit its effort in making up the white pages. Is Nine doing so? I wonder...

An interesting case to watch. And another case which highlights the strangeness and protectiveness of Australian copyright law - that this case, unimagined in the US, apparently unsupported in EU law, is sufficient to go to court on here in Australia.

 
Very brief. Just sufficient to point you towards this detailed analysis of IBM's new 'patent policy', all part of a very general debate about technology and patents that has been going on in the US for some time (hat tip: Fire of Genius).

 
I've been paying attention recently to the TPM Exposure Draft: Australia's new anti-circumvention laws. But of course, there were three other drafts released recently - and one of them represents the outcomes of the so-called 'Fair Use Inquiry' (formally, the Exposure Draft of the Copyright Amendment Bill 2006: Exceptions and other Digital Agenda Review Measures). The Bill and explanatory material are available here (it's an interesting URL, isn't it?).

The Exceptions and Digital Agenda Bill includes some interesting stuff:

1. Time-shifting (taping to watch later)


2. Format-shifting (making a copy in another format)


3. The rather strangely-named 'Certain Purposes' Exception (encompassing extra flexibility for educational institutions, libraries and archives, and parody and satire)


4. Some changes to the Digital Agenda Act reforms, changing the rules relating to communication.

My summary: As my colleague David pointed out in summarising it to our class last week, you can think of the Bill like this: the government did two things:

1. On fair use: they started out thinking about fair use and the ways in which US law might be more generous to users than Australian law. Having identified the instances where US law was more generous as a result of fair use, they sought to encode those instances in specific language. Thus we get some very limited private copying exceptions, we also get parody and satire.


2. On the other stuff: they've taken the opportunity to clarify/change some stuff that came up in the Digital Agenda Review - 'clarifying' parts of those reforms which were unclear or unhelpful.

Overall, it is that the's a Bill that does increase the exceptions that are available. I'm really pleased to see that. i'm pleased to see consumers removed from the group of mass infringers. I'm pleased to see parody there, and some more flexibility for educational and cultural institutions.

But the Draft also has some significant issues for those interested in what David Vaver, and the Canadian Supreme Court (among others) have called users' rights.

First, there is that awful, unreadable legislative drafting which has unfortunately become characteristic of recent copyright law reforms. Frankly, it is just unbelievable just how much more unreadable the Copyright Act is becoming. The drafting is something only a Parliamentary Draftsperson could love - and even they would be hardpressed to see beauty here. The current style of multiple references back to definition sections - is particularly problematic in the Copyright Act where definitions are found all over the place and so many terms are defined.

More importantly, however, there are some nasty little surprises in there that actually further confine the exceptions we do have. If this was the balancing bill, in contradistinction to the tightening of criminal enforcement provisions and the tightening of anti-circumvention laws occurring via the other current Exposure Drafts - it's maybe not the bargain some hoped. While the bill gives in some respects, it definitely takes away too.

Interestingly, the government has chosen to give more generously to the individual as consumer of copyright content, and take from (or give only in a Scrooge-like way) the individual as researcher or transformative user. This may be politically expedient and make a nice press release, but in policy terms, the government has it exactly backwards.
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