Weatherall's Law:
IP in the land of Oz (and more)
 

Thursday, November 30, 2006
Quick Links on the Copyright Amendment Bill
 
A few quick links this morning on the Australian Copyright Amendment Bill:
  • You can read the debate in the Senate on the Bill yesterday (several Senators from the Committee: Ludwig, Bartlett, Lundy, McCrossin, as well as Ellison from the government side) here (beware: big pdf). (The debate is at page 23 and following, then page 67 and following). Summary: opponents complain very bitterly about the rush of the Bill, the inadequate time to consult, the issues of criminal liability, and some other areas. Government responds saying they've listened to the issues, are moving amendments, have consulted adequately (and no one will change their minds anyway, so further consultation is pointless), and Australia will have, post-bill, a 'world class' copyright law. Senator Ludwig moved an amendment to the motion, basically decrying the rush and proposing a review of parts of the Bill.
  • You can read an Op-Ed by the AG in the Tele today here, which focuses on the introduction of the parody defence. This is, of course, one area of the Bill, and the amendments, I've praised.
I think there is one aspect of the Senate debate that is worth commenting on. Senator Ellison commented that:
I also advise the Senate that the government has noted some of the media and other commentary on the bill, much of which, disappointingly, referred to extreme and inaccurate scenarios rather than assessing the practical effect of these reforms. I think some commentators are throwing the baby out with the bathwater, and this undermines public confidence in copyright.
Ok, just an amusing side for a minute - what is 'public confidence in copyright'? I mean, it's not like talking about 'public confidence in the police', is it? How do you 'trust' a law?

To be serious, however, I think there has of course been some of this, including, no doubt, on my part (mea culpa, mea culpa, mea maxima culpa). But I do think it's worth noting that 'assessing the practical effects of these reforms' has been made particularly difficult by the approach of the government to the criminal schedule.

This was the one schedule on which there wasn't a process of public consultation. It is the one schedule that commentators only had about a month to digest. It is very broadly drafted - less so now, post amendments, than it was originally, which is of course a good thing. Experts in the field struggle with the meaning of parts of it: see my previous debate with a criminal law expert.

But most importantly, we don't know how this Schedule will operate in practice. Not even the Federal Police are able to tell us that, let alone the Attorney's own department. It may well be, that once guidelines on enforcement are drafted, presumably in the new year, we will all heave a big sigh of relief and wonder what the fuss was about. If they are planned to be enforced against the commercial counterfeiters of the world, then I, for one, will sigh for relief. But for the moment, we have only the official comments that have been released. And they are opaque. Let me quote again the Departmental response to questions on notice:
Question on notice:'What is the policy intent behind imposing strict liability claues and does that mean that kids will be fined?'
Answer from AGD:
'The strict liability provisions are not intended to target one particular group of the community and will be applied by law enforcement agencies in the normal way along with all other criminal offences.'
There is, of course, a slightly different perspective from the AG a few days later (the Attorney-General in a letter to the editor).

And I've asked for any documents that set out how these laws were intended to be enforced, and been told there aren't any.

Now I remain of the view - one I've stated repeatedly in public - that I don't think we are going to see kids being charged or given infringement notices. It's not going to happen, if only because it wouldn't be good publicity for anyone. But I do have some real concerns about the breadth, which I've explored at more length in a previous post.

So yes, it's a shame that the debate has become extreme. I agree with the Senator on that. But it's also, I think, understandable.

Wednesday, November 29, 2006
ACCC seeking comments on its draft guide to copyright licensing and collecting societies
 
The ACCC (Australia's consumer and competition watchdog) has released a draft guide to copyright licensing and collecting societies. It is seeking comments by 31 January 2007 (at least, a timeline for comments in copyright that's not utterly unreasonable!!!).

From the press release:
The ACCC seeks comment on all aspects of the guide. It is particularly interested in how the guide’s usefulness to copyright users can be improved.

Release of the draft guide for public consultation follows the introduction to Parliament of the Copyright Amendment Bill 2006. This Bill proposes two amendments that are relevant to the ACCC and its functions:

  • The Copyright Tribunal may have regard to guidelines (if any) made by the ACCC.
  • The Copyright Tribunal will be able to make the ACCC a party to a matter before the tribunal (if the ACCC applies and the tribunal is satisfied that it would be appropriate to do so).

Once these proposed amendments come into effect, the ACCC intends to issue a general information guide to users of copyright material to help explain their rights and obligations under the Copyright Act 1968.

After considering the views of interested parties, and commencement of amendments made by the Copyright Amendment Bill, the ACCC will finalise its views and release a final guide. A less detailed summary of the guide is also expected to be produced.

For the guide, go here. (hat tip: Starkoff)



Interested in patent law? The standard of 'obviousness'?
 
Then you should read this beautifully-written recap on the oral arguments in the US Supreme Court in the KSR case - an important US case on obviousness. And if you're interested in more, I recommend The Fire of Genius, and Patently-O.
AllofMP3
 
And in a completely UnAustralian but interesting note, it appears, from what's being said on TechDirt, that USTR pressure will see AllofMP3 - the Russian site for cheap music - shut down.
The Amended Copyright Amendment Bill: the amended FAQs
 
As we all know, the government released its amendments to the Copyright Amendment Bill yesterday. The Bill is the culmination of the US FTA, and numerous reviews, public and not-so-public, that have been going on since about 2003, and is probably the biggest copyright reform we've seen since 2000 (and are likely to see for some time, would be my guess).

The Bill was due to be debated in Parliament today (assume it still is until I hear otherwise from someone). My initial (somewhat heated, oops!) comments on the amendments are here. My comments on the Amendment Bill as a whole you will find by using the links on the sidebar.

But for those of you who joined us late (where have you been?) or just want a handy summary, here's my FAQs on the amended Copyright Amendment Bill:
  1. What does the Bill give to copyright owners? The Bill strengthens enforcement in two key ways: (a) by strengthening our 'anti-hacking' laws (anti-circumvention laws) - protecting more kinds of DRM and making it illegal, for the first time, for individuals to circumvent DRM, and (b) by broadening the criminal liability provisions, introducing strict liability and summary offences, with the explicit aim of giving police more options, and thus encouraging them to actually use the criminal law against copyright infringers. It's worth noting that both these shifts are things that copyright owners have wanted since at least 2000 if not longer.

  2. What does the Bill give to consumers? Some specific 'personal copying' exceptions: in other words, the Bill allows people to (a) tape TV or radio to watch/listen to later, and (b) make copies for private and domestic use of some kinds of material (newspapers, magazines, journals, books, photographs, analogue videotapes and sound recordings). The explicit aim here is to ensure that consumers aren't infringing copyright every time they use modern technology.

  3. What does the Bill give to creators? To the extent that creators are copyright owners, they benefit from the strengthening at point 1 above. Where they are not owners, they get the benefit of a new exception which allows for fair dealing for the purposes of parody and satire. With any luck, this broadens the narrow and inadequate exception for 'criticism and review' that we had before.

  4. What does the Bill give to public institutions like libraries, galleries, archives, universities, and schools? There are some new exceptions for these organisations. They get some broader rights to make copies for preservation, and a 'flexible exception' that allows for various forms of copying provided it doesn't conflict too much with copyright owners' legitimate interests. [update: See Matt Rimmer's comments to my previous post for details of what's happened for these institutions in the amendments]

  5. What does the Bill give to SMEs and the creators of new software and consumer electronics? Um, next question? Actually, that's not fair. They get stronger criminal laws which might mean they need to introduce copyright training for their staff. All right, so that's not fair either. They do get that. They also get the assurance that consumers are allowed to make copies of CDs for their MP3 players and tape stuff to watch later on their PVRs. And they get a right to make interoperable products despite anti-hacking laws. It remains to be seen how useful that is.

  6. So the Bill gives something to everyone, right? Well, yes, everyone gets a little something - this is a consumately political Bill. And the people who get the least are the ones, of course, who were least involved in the debate: the innovators and SMEs. As I said. A consumately political bill.

  7. Do the amendments fix the problems the media have been going on about? Yes, it would seem that the amendments fix some of the worst, specific problems with the Bill. The government has tried to fix the 'iPod exception' (copying for private and domestic use of sound recordings), and has probably succeeded subject to some debate over detail. They have also removed some of the strict liability offences, meaning that a whole lot of conduct, that ordinary/everyday Australians do, will now no longer lead to the chance of an Infringement Notice and a $1320 fine (for detail, see yesterdays' comments).

  8. Given these changes, why are you still complaining about the Bill? I'm complaining about the approach of the Bill. As I said yesterday, these amendments are a patch up job. Yes, the Bill is better for the patches. But the Bill still leads to an ever-more-incomprehensible piece of copyright legislation, that lacks any flexibility for the next technological developments. What has been happening so far in Australia is that new technologies have been introduced, over time, that facilitated mass infringement. The iPod is an example. Now the iPod has been 'legalised'. Will that continue to happen? Maybe. But with stronger criminal laws, will businesses be prepared to keep risking it? Probably. I hope so.

  9. Will the world come to an end after this Bill? Um, no. People will get on with things, and to some extent, quite a lot of the interesting activity online will bypass this system by being user-generated and open access.

  10. Then why are people carrying on as if it will? It's copyright. It's always like that.

So what about the ordinary, average, everyday Joe? Under the amended bill, is he:

  1. A criminal when he records a bit of the U2 concert on his phone? Maybe, if he knows it's without consent of U2. But he won't risk an Infringement Notice (on the spot fine) and so will probably not face a high risk of criminal liability.
  2. A criminal when he tapes something to watch later? No. Never was. But under these new laws, he won't be a copyright infringer either.
  3. Allowed to copy his CDs to his iPod? Yes, assuming that the CD is not copy-protected.
  4. Allowed to keep copies of songs on his laptop and his iPod and his iPod nano? Yes, I think he is, as long as he owns the devices and an authorised copy of the song.
  5. Allowed to make copies of his friend's CD onto his laptop and iPod? No. He has to own the iPod and an authorised copy of the CD.
  6. Allowed to sell his iPod with some songs still on it? No, emphatically not. That's criminal.
  7. Likely to be charged as a criminal for some ordinary act? No, not unless the Federal Police are getting a major boost to resources that I don't know about.

Tuesday, November 28, 2006
Copyright Amendment Bill Amendments - comments
 
Here are some first thoughts on the Amendments the government has proposed to its own Copyright Amendment Bill. Get the Amendments here. Get the Supplementary Explanatory Memorandum, explaining the amendments, here.

Criminal provisions

The government are proposing to remove a number of the strict liability offences: namely:
  1. s132AL(9) (possessing a device to be used for making infringing copies) (the 'I own a PC and a video recorder and I'm a criminal' offence)
  2. s132AN(5) (causing a literary, dramatic or musical work to be performed in public at a place of public entertainment) (the 'we sang popular songs too loud at the restaurant' offence)
  3. s248PA(5) (making a direct recording of a performance without consent of the performer) (the 'mobile recordings at the U2 concert offence)
  4. s248PE(6) and s248QB(6) (possessing equipment to make or copy an unauthorised recording) (the other 'I own a mobile phone/mp3 recorder/PC' offences)
And on the criminal provisions, that's it folks. Yes, despite the rising chorus of concern about the criminal provisions; despite the complete absence of any serious consultation process prior to these laws being released, they've done only a token amount to assuage people's concerns here. They've removed the provisions that people were carrying on about the most - the ones that most directly affected ordinary consumers.

But there are a number of these provisions that catch the 14 year olds, that they've not dealt with. Most obviously, the 'distributing material online to an extent that prejudices a copyright owner' is still a strict liability offence. That's the provision that catches the 14 year old lip-synching to a song. This provision, alone, makes our criminal law significantly harsher than US law, since in the US, you have to at least distribute $1,000 retail value worth of infringing copies before you get pinged under criminal law.

Notably, too, they've been a little inconsistent. They haven't excluded from strict liability causing a film to be seen, or a sound recording, to be heard in public at a place of public entertainment. Playing your radio too loud, or showing the kiddies a film on a wet day at school camp is still a criminal offence, and still something you could get pinged with an Infringement Notice for (apparently, playing your radio too loud is more evil than singing songs too loud).

And, of course, they still haven't told us what they intend to do with multiple offences. What happens when I copy and sell a CD, and that constitutes 33 offences? Can I be pinged with 33 Infringement Notices? Are they ever going to tell us what they are planning to do about this kind of potential overkill?


Copyright Exceptions: The private use (timeshifting, formatshifting, iPod) exceptions

Here, they've done two key things. First, they've"clarified" (ha ha ha) that "private and domestic use" "means private and domestic use on or off domestic premises". Great. I suppose it prevents someone arguing you can only use your iPod at home. But it does sound like such a nonsense, on the face of it. So what does domestic mean again? Good luck working it out.

Second, they've also re-written the iPod exception. Now the conditions of making a 'format-shift' copy of a sound recording are:
  • you have to own a copy of the sound recording ('earlier copy')
  • you make a format-shift copy (the 'later copy') using the 'earlier copy'
  • the sole purpose of your format shift 'later' copy is for the owner's "private and domestic use of the later copy" with a device that you (a) own and (b) is a device that can be used to cause sound recordings to be heard and
  • your earlier copy is not an infringing copy or downloaded from a webcast.
OK, so we've lost the main conditions that made the original exception unworkable for iPods, as I previously discussed. You are no longer restricted to a single copy in any given format. You can make a copy for use on a device that you own. So if you own 2 iPods and a PC, and you have copies on each, it seems that this exception now allows you to do that.

It should be noted that there's still lots of cool features of new technology that you won't be able to use. Want to use your iPod with an iTrip? Probably not, if you're minicasting to a bunch of strangers. Want to use a Zune feature to 'beam' a copy? Nope, that will still be an infringement.

The exception sticks to the original premise: we want to make certain, ordinary acts ok, so consumers aren't pirates, but we won't write a forward-looking exception that will allow new, exciting forms of technology. Although, of course, consumers are STILL pirates because of a whole bunch of the criminal provisions that haven't been amended. But at least keeping a copy on your PC, and one on your iPod won't make you a pirate. Lovely.

Regardless, the copyright owners won't be happy with this one. Ordinary consumers, making multiple copies of stuff they've bought to use on different devices??? Sacrilege. Heresy. Quite contrary to the gods of copyright....

[Update: a reader (thanks David!) points out a potential issue:
I'm still not convinced that the amended iPod exemption (format shifting) works for iPods. It still requires the "later" copy to be made "using" the "earlier" copy, which arguably does not take into account the intermediate step of copying into iTunes and then out again.
I can see David's point here. In response, it could be argued that the terminology 'using the earlier copy' is broad enough to encompass copying that comes originally from a legitimately purchased/owned copy like a CD. Particularly given that any uncertainties may be resolved by reference to the government's obvious desire to allow iPod use (or mp3 player use). However, on the contrary side, it could be pointed out:
  1. What happens when you make a copy onto your PC, then copy to the iPod. then a year later, your iPod gets wiped or you buy a new one. this time, you still copy from the PC copy you still have from 12 months earlier. Can you still say that you are 'using' the earlier, owned copy, when the PC copy was made 12 months ago? Hmmm.....
  2. What the new s109A does not have the 'incidental copying' allowance that the other 'private format-shifting copies' have (a subsection saying incidental copies should be ignored). That's kind of interesting. It's not like they've removed it from the other format-shifting exception, so why the difference here? Can anyone explain?.
Interesting. I'm not sure about this one.]

[Update 2: The Explanatory Memorandum, available here, suggests that David's problem is a non-problem: that the PC copy can be an 'earlier copy'.]


Parody and satire

Yippeee!!!! something I can say something nice about. They've taken parody and satire out of section 200AB (and all its uncertainties over the three step test etc) and created an exception for fair dealing for parody and satire. YAY! The new exception reads:
A fair dealing with a literary, dramatic, musical or artistic work, or with an adaptation of a literary, dramatic or musical work, does not constitute an infringement of the copyright in the work if it is for the purpose of parody or satire.
YAY!

The s200AB 'certain purposes' exception and the three step test

They've done a couple of sensible things here: they've omitted one of the two bits they added to the three step test that made the Australian Act harsher than international law. In particular, you have to negatively impact the interests of the copyright owner, not just a licensee. They've also made clear that 'cost recovery' is not a 'commercial advantage'.

Nevertheless, they've kept the condition that something won't fall within s200AB if it is done 'partly for the purpose of the body obtaining a commercial advantage [or profit]'. This is an additional condition that many users criticised as adding conditions on the operation of the exception. It may also exclude universities and private schools from taking advantage of the exception at all, and excludes many activities of cultural institutions. That's a shame.


Fair dealing for research or study


They've amended the changes to section 40 (fair dealing for the purpose of research or study), that I've ranted about before. It seems, now, that it will no longer be the case that there is an absolute 10% limit on fair dealing for research or study: now, it just provides (almost as it did before) that you can have a 'deemed' fair dealing which is less than 10% or a chapter of a book. That's good news. Although I remain of the view that they should have just left section 40 alone. It was reasonably clear before, and now it is just that little bit harder to understand, in my view. Frankly, the new draft section 40(5) is pretty incomprehensible although I think we get what it means.


Preservation copying, caching by educational institutions and Copyright Tribunal

Whole lot of changes here, that I don't really understand. Can anyone enlighten me? Should we be liking or not liking these amendments?


TPMs

Not many changes here, I'm afraid. Basically, they've just corrected the really obvious drafting error on the interoperability exception. I'll have to give some thought to the way they've done it. I'm not entirely convinced that their new condition is going to allow proper interoperability, although as I said, it will need thought.

All those other recommendations of the Senate Standing Committee in relation to the TPM bit of the Act have been ignored. The link to infringement is gone (as we knew it would be).


Conclusions/upshot

This is a patch-up job. It addresses the issues that people were yelling most loudly about without addressing the underlying issue: that this Bill significantly increases the strength of copyright rights while giving very little either to consumers, or to the technology innovators of tomorrow.

With these amendments, the government has removed the most pernicious effects of the Amendment Bill (or at least, those we've managed to find, given the incredibly short time we had to look at it). It removes stupidities like the 10% cap on research copying, and includes an iPod exception that at least arguably covers the iPod. The key outlier here is the Criminal schedule, which is very close to being just as problematic as it originally was.

But even with these amendments, and leaving the criminal provisions to one side, the Copyright Amendment Bill is an unholy mess of qualifications, conditions, and incomprehensible drafting. It represents a lost opportunity.

And finally, this Bill fails the two basic tests the Attorney-General set himself when he started this process. This bill does not give Australians the same rights that American consumers have. And it does not ensure that consumers are treated like consumers and pirates like pirates. It treats everyone as pirates. Everyone from 14 year old wanna be stars, to Google, Apple, the creators of MySpace, YouTube or any other exciting new technology. Welcome to Australia, your own personal copyright nightmare.
Copyright Amendment Bill Amendments Released
 
Well, everyone - we've been hearing how the Bill was going to be amended in response to various submissions and activities pre, during, and post the Senate Committee hearings. Now they're out there. Click here for the amendments. More once I've had a read.
Yes, yet more criticism of the Copyright Bill in the news today
 
Yup, there's more. The AFR has got on the Copyright Amendment Bill Criticism Bandwagon. It's a popular little bandwagon. I'm not sure whether any of the cool kids are playing with the Copyright Amendment Bill Support Crew these days.

Last Friday, there was a story from Lucinda Schmidt, and today, two pieces. One from Peter Moon, Melbourne IT lawyer. Can't give you a link (AFR are one of those outfits who believe in subscription only access), but after spending a bit of time outlining a handy little gadget banned by the new laws, here's the general conclusion:
The new laws will be nothing if not complicated. Labor's Kevin Rudd, sounding suspiciously like Les Patterson, is writing his second reading debate speech these days. He informed parliament earlier this month that copyright legislation now is a bugger's muddle as far as the ordinary citizen is concerned. And so say all of us.
Then we have Alan Fels, dean of the Australia and New Zealand School of Government (and former Competition Man About Town), and Fred Brenchley, former editor of the Australian Financial Review:
Cabinet should take note of backbench concern. It should proceed with the necessary changes on technology locks for the USFTA - but ensuring their use only to protect copyright - while delaying the new penalty and limited exception provisions for further review.

Copyright is an intangible. Complying with it in the digital age with its host of new technologies will require widespread public acceptance. Draconian personal fines and laughable restrictions are not the way to achieve it.
Meanwhile, the Bill is to be debated tomorrow. Can't wait. I've been blogging at length; and links to most of the stuff you will find on the sidebar.

Monday, November 27, 2006
Copyright Amendment Bill - Bills Digest Now Available
 
The Bills Digest, produced by the Parliamentary Library, which describes the Copyright Amendment Bill, its history and context, is now online here.

Bills Digests are produced by the Parliamentary Library to help inform legislators on the legislation they are voting for or against. These days, the Bills Digest is often more informative in explaining what provisions of a Bill do, and where they come from, than any Explanatory Memorandum (many EMs simply paraphrase the provisions without explanation). I've not read through this one yet, but will be interested to see what it says.

It's worth noting too that the Bills Digest for the Trade Marks Amendment Bill 2006 (which has already passed) is also available here.

[oh, and a big hi to my readers at the Parliamentary Library. How fascinating to have a blog quoted in a Bills Digest!!!]
And on a non-IP but definitely important note
 
My colleagues at Melbourne, Sally Young and Joo-Cheong Tham, have published a new study, Political Finance in Australia: A Skewed and secret system.

From the Executive Summary:
'This audit directly addresses the controversial role money plays in Australian politics by asking the question: how democratic is the way political parties are funded in Australia?

It identifies two central problems with the funding of Australian political parties: a lack of transparency, with secrecy a hallmark of private funding, political spending and the use of parliamentary entitlements and government resources; and the political inequality that is maintained and perpetuated by Australian political finance. The distribution of private funds favours the Coalition and ALP and so do election funding, parliamentary entitlements and state resources like government advertising. This is especially the case when these parties hold government. The broader picture then is one of institutional rules designed to protect the joint interests of the major parties by arming them with far greater war chests than minor parties and new competitors. While electoral competition exists, it is largely confined to the major parties,with players outside this cartel disabled by financial disadvantages.

To address these problems and other deficiencies, 35 recommendations are made in four areas: private funding, public funding, government advertising and political expenditure.
Important stuff indeed, for anyone who is at all interested in our system of government here in Australia.
Australian cricket fans not the only ones with IP issues?
 
Last week, we all had enormous fun laughing at EMI and it's amazingly stoopid PR move (as well as highly questionable legal move) of trying to ban the circulation of a cricket songbook that put words to some of the tunes of songs that EMI owns. Fortunately, that little threat went away.

Now, via IPKat, I learn that the Barmy Army have issues too:
As if the England cricket team weren’t doing enough to lower the morale of their put-upon fans, the IPKat learns from DNA India that the England and Wales Cricket Board (ECB) is accusing the ‘Barmy Army’ of die-hard cricket fans of infringing its intellectual property rights. The claim is that merchandise bearing the ECB logo and the word ASHES infringement the ECB’s (presumably trade mark) rights. The ECB has said that it wants to avoid legal action, but hasn’t ruled it out.
What is wrong with these people? Since when was it a good idea to stop people having fun and supporting their cricket teams? Let's face it, the English Cricket Team clearly need all the help they can get!
And more copyright coverage
 
This editorialopinion piece in the Age on the weekend (hat tip: Matt Rimmer). Basic thrust of the article?

Instead of moving Australian copyright law into the 21st century, where copyright holders and audiences will need as much freedom and flexibility as possible to develop new and successful financial relationships, the Government wants to freeze the nation into a model that would have worked flawlessly 25 years ago. These laws are not just an insult to the audience, they actually criminalise the audience. A restrictive copyright regime will simply produce a population with no respect for copyright.

These laws must be junked. We need to start afresh. There are more media technologies coming down the pipeline every day. Each one will present new threats, and new opportunities. If we overreact, in response to a bogus threat, we'll box ourselves in and consign Australia to second-rate status in the global creative economy.
Australia's new criminal copyright laws: strict liability, 'negligence' and why these laws just haven't been thought through
 
I feel like I've been going on forever about Australia's new criminal copyright laws (that is, Schedule 1 of the Copyright Amendment Bill, due to be reintroduced into Parliament this week). Some readers are no doubt getting bored by the whole thing.

But I would like to share with you - at least, those of you who are interested - an exchange I've been having recently via email with a colleague of mine, Jeremy Gans. Gans is a bona fide criminal law expert, unlike me. He took me to task (a little!):
I think the three tiers of responsibility are being referred to imprecisely. (Well, more precisely, you're picking up criminal lawyers' sloppy language, which will inevitably mislead anyone other than criminal lawyers. And many of those.)
So I've been nutting it out a bit with Jeremy's assistance. I thought quite a few people might have some of the same questions I did. So I'll set out our debate at some length here.


The 'top tier' (indictable offences; 5 yrs jail/fine of $60,500 ($302,500 for companies)

As Jeremy explains,
The 'top tier' has the default element under the Criminal Code. That's not intent or knowledge [except in a subset of offences] but 'recklessness.' Recklessness means being aware of a risk, not certainty or desire. So, you can still be liable even if you don't want to breach the law or you don't know for sure that you are. Also, no matter what the fault element, the issue is knowledge of the underlying facts, not their legal characterisation. you can be guilty even if you know nothing about copyright law, let alone the nuances of the new legislation. Ignorance of statute law - even poorly drafted statute law - is no excuse.
Let's see what that means. Take proposed section 132AD. It says that you commit an indictable offence if :
  1. you make an article, with the intention of selling or hiring it, or obtaining a commercial advantage;
  2. the article is an infringing copy of a work or other subject matter; and
  3. copyright subsists in the work or other subject matter when the article is made.
In terms of the 'mental element' of the offence, and applying the standard fault elements under the Commonwealth Crimina Code, that means:
  1. you must intend the act of making the article (you press 'copy' on your computer).
  2. you must intend to sell or hire the copy or obtain a commercial advantage.
  3. The thing which makes a copy 'infringing' is that it is made without the authorisation of the copyright owner or, in the case of a parallel imported copy (authorised copy made overseas not authorised to be sold in Oz), that it would be an infringement if made locally. Being a 'result', the default fault element in the Criminal Code is recklessness. So, you must be reckless (aware of substantial risk; take risk anyway) that the copy is made without the authorisation of the copyright owner.
  4. You must be aware of a substantial risk of the facts that mean 'copyright subsists'. In other words, knowledge (of the risk) that facts exist that cause copyright to subsist - someone composed the music, it may well have happened within the last 50 years or whatever, it may well have happened in the US (or any country that turns out to have a copyright law we recongise), they may well not have declared their work free for anyone who gets it, who ever did it may well not have got the nod from the owner - will suffice. You don't have to know anything about copyright - or even that there is such a thing as copyright - or anything specific about the particular sort of copyright you're looking at.

The 'middle tier' - recklessness (2 yrs jail/$13,200 fine (or $66,000 for company)


Again, let's see Jeremy's explanation of negligence:
The 'middle tier' has the fault element of negligence. This could be really easily misunderstood, as it's a much more stringent standard than negligence under civil law. The standard comes from manslaughter: you must fall GROSSLY short of the 'standard of care'. (I think this fault element is poorly suited to a commercial crime. What standard of care? And can an infringement ever be gross?
This Jeremy and I have been debating. Just what is 'negligence' here? AGs certainly have not explained what they think this means in any documentation I've seen. Assuming of course they've even thought about it. Here's what I wrote back to Jeremy:
Like you, I have absolutely NO idea what the 'standard of care' for avoiding copyright infringement might be, let alone how one would fall 'grossly' short. I suppose there might be some contexts where it makes sense to talk about a standard of care. I'm thinking here, for example, of a person who is establishing a social networking website. There might be certain standard technologies one would use to ensure that one is not allowing upload of copyright infringing material. Or perhaps if you are establishing a video rental business. Again, there might be certain standard steps to avoid receiving pirate, as opposed to authorised, copies of material. Imagine the video store which to save money decides to find an overseas supplier of videos - which provides a paper handwritten letter that says the copies are authorised? Grossly short of the standard one would expect perhaps?
Jeremy responded:
Your negligence example sounds plausible. But the truth is that no-one knows how criminal negligence works. It's only ever been applied to crimes of violence, notably manslaughter (where the alternative ground of unlawful and dangerous act is much more common.) Main examples of negligence: trying to set yourself alight to prove to your girlfirend that you love her, but accidentally setting her alight instead; trying to get some trespassing boys off your property by chasing them into thick vegetation with your front end loader, running one of them over. Maybe you can draw some copyright analogies?
You know what? I'm not even going to try to find a copyright analogy for 'accidentally setting your girlfriend alight while trying to light yourself to prove your love.' I don't want to even think about what a copyright analogy to that might be. Ditto for the front end loader. Ick.

What does this show? If neither copyright expert Kimberlee, nor criminal law expert Jeremy can work out what negligence would mean in this context, the obvious conclusions are:
  1. This is really hard;
  2. This has not been thought through: it looks like we've just had the wholesale application to copyright law of criminal law drafting models from elsewhere. And they don't fit. But of course no one [in government] wants to hear that and no one [in government] wants to fix it because it's critically important that these laws go through now... NOT. As I've said repeatedly, there is no hurry on this Schedule - the only one in the Act on which the government didn't see fit to do consultation (and no, talking to IP owners is NOT consultation. It's not consultation when you talk to only one side of the equation. That's called talking to lobbyists).
  3. We need some explanation from the people who have written these laws. Can they give us an example or two perhaps? Tell us what they were thinking about when they drafted laws applying 'neglience' here?

The 'bottom tier' - the strict liability offence ($6,600 fine/$13,200 for companies)

Once again, over to Jeremy:
The 'bottom tier', 'strict liability', doesn't technically have a 'fault element' but it has the next best thing: the defence of honest and reasonable mistake of fact. That defence means that if you thought things were otherwise than they turned out to be (and your thinking was reasonable) then you're not guilty. (The fact that it's a 'defence' just means that you have to raise it. But after that, it's up to the prosecution to disprove it beyond reasonable doubt.) 'Strict liability' shouldn't be confused with 'absolute liability', where what you think doesn't matter at all (but other defences might still be available, e.g. involuntariness, necessity.)'
In terms of section 132AD again, this means the person charged:
  1. makes an article in preparation for, or in the course of, selling, letting it for hire, or obtaining a commercial advantage or profit
  2. the article is an infringing copy of a work or other subject matter; and
  3. copyright subsists.
The difference between this and the indictable (top tier) offence is that you no longer have to know that the article was made without the authorisation of the copyright owner. As Jeremy points out, that means there's actually not a huge difference between bottom and top tier.

What of the defence of 'honest and reasonable mistake of fact'? Well, I raised two questions with Jeremy:
  1. You have to turn your mind to it to make out the defence. Pure ignorance is NOT a defence. Surely it's not that unusual that people don't even think about copyright. Or businesses don't have strong internal systems in place to prevent people infringing.
  2. All the strict liability offence requires is that you are liable where it wasn't made with authorisation of the copyright owner. Most acquisitions of copyright material these days are in fact via license. Licenses to use copyright material, particularly software, often come with lots of conditions (number of computers, number of simultaneous users, number of copies that can be made, how upgraded etc). Once you make copies of the material beyond those which are licensed, you are infringing. Let's say that copying is criminal. Can you plead 'honest and reasonable mistake of fact' if you don't actually check the terms of the license?
Jeremy tells me that I am right about the 'pure ignorance' scenario. Yes, you must turn your mind to copyright, or you have no defence. Although, as he points out,
There is an exception to this in the Cth Criminal Code in 9.2(2): "A person may be regarded as having considered whether or not facts existed if:(a) he or she had considered, on a previous occasion, whether those facts existed in the circumstances surrounding that occasion; and (b) he or she honestly and reasonably believed that the circumstances surrounding the present occasion were the same, or substantially the same, as those surrounding the previous occasion." So, the hapless employee [making an extra copy of licensed software] would be OK so long as they had done their research once - i.e. checked the licence and saw that what they were doing was fine and reasonably believed that this occasion was no different.
But, as Jeremy points out, the bigger problem (for potential defendants) is that the concept of 'reasonableness' is really narrow:
Just about every case that considers the test takes a tough line. Relied on a dodgy speedo without getting it serviced routinely? Guilty. Relied on the fact that the dude who loaded your truck got the weight right NEARLY every time? Guilty. Relied on your employee without providing world-class training? Guilty. Maybe if the person who gave you the dodgy CD was a copyright lecturer?
Ouch. Sounds like 'reading the license once (and not understanding it because it's written in 6 point font in legalese) might not be sufficient defence.


So where is the real problem with the criminal copyright laws? It's in breadth, prosecutorial discretion and the potential for selective enforcement

I hope some of the above explanation helps some people understand what's going on here. But given this explanation, you might be forgiven for thinking there really was 'no big deal' here.

Well, as I've said repeatedly, the real concern is that the criminal copyright laws were already broad (already too broad, in my view) and strict liability offences - and infringement notices - makes it more likely they will be enforced. As I said to Jeremy:
The most significant problem is the increased potential for enforcement - SELECTIVE enforcement too because the laws are so broad - that comes when you have infringement notices attached to all these offences. I get what they're trying to do, and what they're trying to capture. But they've written these laws WAY broader than they needed to in order to achieve their aims.
Jeremy doesn't disagree - but points out this problem is not exclusive to copyright law (of course!):
But my point is that your point loses some of its significance because the law of criminal responsibility is already amazingly broad, even for 'full' liability offences. Lots of car drivers who kill someone are manslaughterers; many are murderers. More importantly, as you note, the law on complicity is stunningly vast. It's only prosecutorial discretion (and maybe police ignorance) that stop car passengers from being prosecuted for nearly everything the driver does (e.g. speeding, illegal parking, drink-driving) or housemates for being prosecuted for dodgy things done by a household member (shopping on an invalid tram-ticket, shoplifting tonight's groceries.) You're guilty if you know of even the possibility that your mates will break the law.

The law on criminal responsibility really only protects extreme people (drunks, [drugged out], in a rage, in despair) or people in extreme circumstances (fluke accidents, difficult choices, friends of extreme people.) Ordinary people doing ordinary things - surely the norm for all these breaches of copyright law - escape only through prosecutorial discretion or, failing that, sentencing discretion or, failing that, highly-paid lawyers who can find technicalities (as there'll surely be many in this new legislation or in the Commonwealth's untested criminal code

itself.)
So there you have it folks. From someone far more knowledgeable than me about the new criminal provisions Criminal Code and criminal law generally. I hope you've found it as instructive as I did.

And what do we learn from this boys and girls? That the problems aren't matters of my imagination, they are real. That these laws probably haven't been thought through in a lot of detail. And that the guidelines on how these laws will be enforced in practice - which I believe will be drafted next year - are going to be quite important, me thinks.

Saturday, November 25, 2006
Long overdue clean up of the sidebar FAQs
 
Just a quick note: readers may notice (or they may not!) that I've done a long overdue overhaul of the sidebar on the blog. We now have a list of 'faqs' on the Copyright Amendment Bill: so that people can readily find posts on issues that interest them about our massive shifts in australian copyright law. enjoy!

Friday, November 24, 2006
DRM is Dead
 
Fascinating quote from Paul Birch, who is a member of the exec committee and main board of the International Federation of Phonographic Institutes (IFPI) as well as the BPI Council and Chairs International:
DRM as we know it is over. There may be Son of DRM but that’s another matter. Right now its dead, the majors are moving towards the new model. The one thing you can be sure of is they will still be at the centre of the world music industry whatever happens. The independents are another matter. As our sector’s share has fallen by almost half in just over twelve months, the new model for us is partnership. It always was, I’m just not sure we got it.
Link to full story here. To really believe this, however, I want to see their head lawyers say this. Because I have this feeling - maybe wrong - that the chief people aren't necessarily the (only) problem here. When it gets down as far as the lawyers, things can morph.

(Hat tip: Boing Boing)
Someone saw the light: that cricket songbook now available
 
Good news for cricket fans. 'That' songbook is going ahead now (I blogged about it here): EMI had protested a songbook designed to ensure Australian cricket fans can counter the 'barmy army' with their own songs, set to some tunes of songs that EMI deals with). To quote the Fanatics' website:
Unless you’ve been living on another planet you would have surely been hearing about the Fanatics songbook over the last couple of weeks.

Just 5 days prior to the commencement of play at the Gabba it looked like we were going to have to shred the recently printed 100,000 copies.

After a slight misunderstanding with our good friends at EMI, we’ve been reliably informed that the songbook isn’t in breach of any copyright laws and in turn the songbook is once ahead downloadable and fully legal.

Fantastic news for Aussie cricket fans the nation wide!!
Download a copy for yourself from here.

Thursday, November 23, 2006
Democrat Senator Andrew Bartlett comments on the Copyright Amendment Bill
 
Here.
OAK Law Report and CC Event - Brisbane, 29 November
 
Brian Fitzgerald's team at QUT, Brisbane are having an event next Wednesday, 29 November, which will be both a cc Salon (showcase of CC material) and the launch of the OAK Law (Open Access to Law) Report which was released in late September.

Details:
When? 29 November 2006
What time? 6pm
Where? The Block, QUT Creative Industries Precinct,
Corner of Musk Ave and Kelvin Grove Rd, Kelvin Grove, Brisbane.
RSVP? It appears not; the event is free, all welcome.
More? More information here (CC) and here (OAK Law)
There is an OAK Law launch in Sydney, too, on 30 November; more here.
US Copyright Office issues new exceptions to DMCA
 
It's always interesting when, simultaneously with law reform here, something happens overseas.

At the moment, Australia is drafting its own OzDMCA. The Bill is due to pass Parliament next week. Australia has drafted a series of legislative exceptions to the laws that ban people from 'hacking' (circumventing) DRM (technology used by copyright owners to prevent access/copying of copyright works). It has also issued draft regulations that will create more exceptions to the ban on circumventing access controls. Australia has also instituted a system where exceptions will be able to be sought on an ad hoc basis, when a problem arises.

In the US, every 3 years, the Copyright Office considers whether new exceptions to the ban on circumventing access controls (17 USC 1201) is required. Yesterday, US time, the US Copyright Office issued its third rulemaking on ad hoc exceptions to the ban, under US law, on circumventing access controls on copyright works. They've made quite a few recommendations. Here's the list (with my titles inserted):
  1. The Film Professor's exception: Audiovisual works included in the educational library of a college or university’s film or media studies department, when circumvention is accomplished for the purpose of making compilations of portions of those works for educational use in the classroom by media studies or film professors.

  2. The abandonware/archiving exception: Computer programs and video games distributed in formats that have become obsolete and that require the original media or hardware as a condition of access, when circumvention is accomplished for the purpose of preservation or archival reproduction of published digital works by a library or archive. A format shall be considered obsolete if the machine or system necessary to render perceptible a work stored in that format is no longer manufactured or is no longer reasonably available in the commercial marketplace.

  3. The obsolete/malfunctioning dongles exception: Computer programs protected by dongles that prevent access due to malfunction or damage and which are obsolete. A dongle shall be considered obsolete if it is no longer manufactured or if a replacement or repair is no longer reasonably available in the commercial marketplace.

  4. The disabled access to ebooks exception: Literary works distributed in ebook format when all existing ebook editions of the work (including digital text editions made available by authorized entities) contain access controls that prevent the enabling either of the book’s read-aloud function or of screen readers that render the text into a specialized format.

  5. The mobile phone network locking exception: Computer programs in the form of firmware that enable wireless telephone handsets to connect to a wireless telephone communication network, when circumvention is accomplished for the sole purpose of lawfully connecting to a wireless telephone communication network.

  6. The Sony Rootkit exception: Sound recordings, and audiovisual works associated with those sound recordings, distributed in compact disc format and protected by technological protection measures that control access to lawfully purchased works and create or exploit security flaws or vulnerabilities that compromise the security of personal computers, when circumvention is accomplished solely for the purpose of good faith testing, investigating, or correcting such security flaws or vulnerabilities.
For US/Canada commentary on the exceptions, see:
What's interesting from the Down Under perspective? Well, here are some initial thoughts.

Once again, one of the emphases of this rulemaking is on obsolete, or malfunctioning DRM. And once again, I wonder why, oh why, such DRM isn't just excluded from protection. Regardless, note that the Australian draft regulations do contain such two exceptions covering this ground. Australians will be allowed to circumvent access controls for the following purposes:
(j) the gaining of access to copyright material to which a technological protection measure has been applied if
(i) the technological protection measure is not operating normally; and
(ii) a replacement technological protection measure is not reasonably available;
(k) the gaining of access to copyright material that is protected by a technological protection measure that interferes with or damages a product in which it is installed (the host product) or another product used in conjunction with the host product:
(i) to prevent damage, or further damage, to the host product or another product by the technological protection measure; or
(ii) to repair the host product or another product (if circumvention of a technological protection measure is necessary to enable the repair to be carried out).
Notably, our exception, though almost incomprehensible in its drafting, is broader:
  • it is not confined to films and sound recordings
  • it is not specific on exactly how the DRM must be interfering with the product. The US Copyright Office exception is confined to situations in which 'create or exploit security flaws or vulnerabilities that compromise the security of personal computers'. Any other kind of damage to your computer wouldn't be covered by the US version, but would be covered by ours.
The film professor exception is interesting too. It appears to be based on some work done by the Berkman Centre - see the commentary of William McGeveran (link above). We don't seem to have anything equivalent that I know of.

And finally - that phone locking exception! How fascinating. We are after all starting to see the same kind of activity here: my last phone was network-locked.

So here's your homework boys and girls: is a mechanism, used to lock a physical cell phone to a particular mobile phone network, (a) protected by our laws (have a look at the exclusions from 'access controls', and the definition of access controls), and (b) if it is, is there an exception (maybe interoperability...?). Interesting.

[Update: more on the Oz relevance of this ruling at IPWar's]
Yet another scenario: can a library buy a DVD from overseas?
 
Mental note: never start doing scenario analysis. It leads to more...

I've received another question from a reader, about the Copyright Amendment Bill and its criminal provisions: this time as it applies to libraries. Here's the hypothetical:
Libraries in Australia sometimes purchase copies of DVDs from Amazon or other overseas providers, because they are cheaper than going through the Australian distributor, or because the copyright owner has decided not to license a film for distribution in Australia. Would allowing these copies to be borrowed by staff and students, who may use them for research or show them in class, be impacted by the new laws?
The reason my reader has expressed concern is because:
  • Australian copyright law bans the parallel importation of films. This means that authorised copies (ie, official copies) of films purchased overseas, when sold or dealt with commercially in Australia, are 'infringing copies'
  • The various criminal provisions all talk about selling, distributing etc infringing copies.
  • So, my reader asks: might the library be 'importing' or 'distributing to an extent that affects prejudicially the copyright owner' an infringing copy of a film?
I have to say, that I don't think it likely that we have a problem here, although as always, if people disagree, I'd love to hear from them.

The key here is that the library is not here making copies, nor is it putting material online. Nor is it selling copies, letting them for hire (assuming no money is changing hands here), offering them for sale, or exhibiting them by way of trade. Nor is it authorising infringement by handing the film to teachers to shown in class: showing in class is not an infringement (because of section 28). It is not importing the items for sale either (simply importing isn't an infringement - it has to be for sale, trade, or for distribution to an extent that prejudices the copyright owner).

The only thing, as far as I can see, that the library might be doing here is 'distributing copies'. According to the Australian Oxford dictionary, 'distribute' means give shares of; deal out; spread or disperse throughout a region; put at different points over an area; spread generally, scatter. I would have thought that this implies that distribute means a copy goes from A to B. Not that A has a copy and lends to B, then later A lends to C.

That said, it's not entirely clear that I'm right on that. Looking at the new proposed exceptions in the Copyright Amendment Bill, in particular, the new s111 (the time-shifting exception), the government has provided that it is illegal to 'distribute for the purposese of trade or otherwise' a time-shift copy - and specifically provided that, 'for the avoidance of doubt', 'distribute' does not apply to the loan of an article by the lender to a member of the household. Does this imply that in fact the government does see 'distribute' as including 'loan without payment'?

Bottom line? I'm not sure. There's at least a risk that libraries 'distribute' their physical copies of works, which will become a problem under the Copyright Act when the copies are 'infringing' - which legitimately purchased overseas but not licensed copies of films are. My gut says that's not distribution, but it's just not clear cut.

If the library is 'distributing', is it 'distributing to an extent that prejudicially affects a copyright owner'? As my reader noted, if a cheaper o/s copy is being purchased overseas in preference to the local copy, that certainly could be affecting the copyright owner prejudicially (and under these provisions, the 'prejudice' does not have to be 'substantial'. Although, if the copyright work hasn't been licensed for sale in Australia, it's hard to see much prejudice.

If there is distribution here - by no means a cut and dried issue - there will be:
  • copyright infringement under s102
  • criminal liability under s 132AH and 132AI.
Note that neither of these criminal provisions have a defence, on the Copyright Bill as currently released, covering activities by libraries, archives, educational institutions. This is another reason why perhaps the defence for libraries etc, which IS found for s132AC, should be applied more generally, to a majority of the criminal provisions.

Bottom line? There's some risk here, on the face of the legislation, under both the civil and criminal provisions. But as I've said, if anyone is aware of anything in the history or interpretation of the term 'distribution' that gives us a clear answer either way, do let us know.

What do we learn from this? The government's big problem here is its insistence on (a) maintaining parallel importation bans on films, while simultaneously saying that (b) people should be allowed to use legitimately purchased media from overseas. These two positions are inconsistent. And they lead to anomalous results, because those overseas copies are infringing copies under current law.

Wednesday, November 22, 2006
Copyright Amendment Bill listed for hearing
 
For everyone who has been asking: I can now confirm that the Australian Copyright Amendment Bill has been listed for debate next Wednesday, 29 November. (hat tip: Sarah Waladan at the ADA).
Scenarios, Scenarios, Scenarios - applying the new copyright law to real life scenarios
 
One of the fun things that comes from blogging is that people in the 'real world' (ie, not lawyer-hypothetical world or bureaucrat-hypothetical world) can put scenarios - real world type ones - to test against law. And people like me can comment. Here's three.

Our first scenario comes from the Red Barren, aka Ben Barren. His blog is here. Here's his hypothetical scenario:
Imagine I got a "virtual space" from Publisher or Website Provider A (could be an ISP, a content site, search engine) and received X megabytes of storage space. And then all my electronic communications - whether they be emails, text messages, standard blog posts, photo and video storage, I uploaded/backed up to that virtual file directory so I could access them anywhere from any PC with the net and edit them on the fly. Each piece of content would have an internet/web address. I would also leave the default "public" settings on this content so much of it could be viewed by public. There would be 2 more levels - one for friends, which could view certain files and communication, and another specific temporal authorisation because I was emailing/talking to someone and various content needed to be viewed on the web, privately. eg for a meeting.
So let's assume that the copyright in some of this content - emails, photos, videos - belongs to someone else, and let's assume, too, that it's the kind of content that someone cares about (ie, they might actually sue). Is Red infringing liable? Is Publisher A liable?

Red: Two possible kinds of infringement: making copies of stuff, and communicating stuff to the public.
  • Copies: When Red uploads, he makes copies. Unless he has a license, that's infringement unless an exception applies. The fair dealing exceptions aren't going to apply here (presumably he's not putting stuff up there for 'criticism/review'; maybe some would be 'reporting news' but it wouldn't be a blanket exception). Possible that some of his copies would be covered by the new format-shifting exceptions under the current Bill. That would allow him to make a single (note that: just one) copy in any given format of a book, newspaper, periodical publication, or sound recording (and an electronic copy of a photo or a videotape). It seems that he can make this copy on someone else's server (at least, I can't see anything in the legislation that prevents that). The copies are supposed to be only for 'private and domestic' use but that doesn't have to be at home, according to the government. The exception however doesn't cover the copies he makes/uses for work purposes. Bottom line: at least some of these copies uploaded are infringements - the ones he puts there or uses for work, the copies which are 'second copies' in a given format, and any born digital audio-visual material.

  • Putting it online: Red will infringe copyright if he makes material available to 'the public' (Australian law grants copyright owners the right to 'communicate works to the public'). 'The public' here are basically (a) anyone he knows through work and (b) the general public. Groups of his actual friends are not 'the public'. Bottom line: when Red sets the default to 'public access', and when Red uses his virtual space for work purposes/virtual meetings, then he is infringing copyright. No format-shifting exceptions apply here, and it seems, no other exceptions do either.

  • What's the possible liability? Red could be sued in the civil courts for copyright infringement; possibly leading to an injunction; damages would depend on proof of harm by copyright owners. Red could also be charged with a crime. The main criminal act that we might have here is 'commercial scale infringement prejudicing a copyright owner' (s132AC), 'making infringing copies commercially' (s132AD) (for the copies he makes for work purposes), 'distributing infringing copies' (either commercially, or sufficient to prejudice a copyright owner) (132AI).
Publisher A: Publisher/Webhost A might also be infringing copyright:
  • What possible infringements? Making copies (on A's servers), communicating to the public and by authorising infringement by Red and by Red's end users. There might be a debate about whether A is in fact 'communicating to the public'. The law says you communicate if you are responsible for the content of the communication. You would think that the content is determined by Red, not A. But it's possible that two people might jointly communicate - so maybe A and Red are both liable. If A is an 'innocent infringer' (doesn't know it is infringing) it might not be liable for damages - but might end up with an injunction against it. Temporary and incidental copies aren't infringements, and acting as a mere carrier isn't an infringement under Australian law. But hosting goes beyond this: A holds on to copies, can control its communications. The most significant danger for A is that A is authorising infringement. Whether A is authorising depends on a whole lot of things: how much power A had to prevent infringements, what steps they took to prevent infringement, whether they are financially benefiting from infringement (eg, do they put ads on the virtual space?), evidence of their attitude and whether they 'encourage' people to infringe. It's case by case (yes, this is law. It's grey, ok?). Bottom line: depending on all the facts, A runs the risk of infringing here. A might have to take some fairly draconian steps, like taking down material, booting infringers off, active policing, use of whatever technology is available to prevent infringement. This becomes more necessary the more successful A becomes.

  • Are there defences for A here? Since A's greatest danger is that A is authorising, A needs to take steps to ensure that A is not authorising - 'reasonable steps' - like having a copyright policy, having a system for 'takedown' of copyright-infringing material when copyright owners send nasty letters; if technology is available to prevent infringement, using that technology. Will these be enough? Who knows? The cases aren't particularly replete with clear guidance. In theory, too, Australia has a 'safe harbours' regime for webhosts and the like, just like the US does. That would usually mean that if you implemented 'notice and takedown' systems, you would be largely protected from liability. Unfortunately, when they wrote these laws, Australia confined the safe harbours to carraige service providers - that is, people like Telstra with CSP licenses. The government has mooted the possibility of extending the safe harbours to all 'online service providers' (like the US) but that hasn't been done yet. For the moment, therefore, A doesn't have that protection. Bottom line: A can take steps to try to protect itself, by using whatever systems it can to take down copyright material. But the rules are pretty unclear and the safe harbours don't help.

  • What's the possible liability: civil lawsuit (damages, injunction). A new provision in the latest bill makes it easier, too, to show damage - if some infringements are shown, more can be effectively assumed. Also criminal - section 132AC again, which makes it a criminal offence to engage in conduct that leads to infringements on a commercial scale, substantially prejudicing the copyright owner. The potential fines are pretty significant - over $300,000 if A is a company.
What do we learn from Red's hypothetical? Exactly what people have been saying about these laws. The government has chosen to create narrow exceptions, hasn't created real defences for online service providers, and has upped the ante on criminal copyright offences. The bottom line is exactly what Red opined:
It sounds serious. It is. And makes me envious of an economy like the US where they let services like YouTube, MySpace, Blogger and such grow, and only start dealing with the issues when there is a huge competitive acquisition of the startup, which brings in the lawyers who dont want competitors to have in effect an unfair advantage.
As has been said: the next YouTube, MySpace, Blogger etc won't come from Australia, because there is no flexibility in our copyright laws, no breathing space. It should, of course, be pointed out that both YouTube, and MySpace have been sued in the US. But note that those lawsuits have come recently, after the proof of concept/momentum has been established. You might not get to that stage here in Australia.

Our second scenario comes from a reader, David Wilson, who pointed me to this story. To give you a summary:

Giant music publishing company EMI has threatened legal action against Australian sporting fans group The Fanatics. EMI says The Fanatics' Ashes songbook breached copyright because it included altered lyrics to songs such as Go West by the Village People and Daydream Believer by The Monkees. The Daydream Believer parody included the lines: "Cheer up Michael Vaughan, How bad must it be, To a be a poor pommie whinger, And you're watching on TV?" The group put the songbook together in a bid to get Australian fans to outsing England's Barmy Army during this summer's Ashes series.

All right, so now I'm in shock. Jaw drops to ground, quite literally. What kind of loser humourless company decides it is a good idea to ban a cheering songbook with fun songs for sports fans - in Australia of all countries. Is there a pom on the EMI board or something? Are they trying to give the barmy army a cheering advantage?

It raises a question, though: our Attorney-General recently promised that 'free speech and Australia’s fine tradition of satire' would be promoted by new laws 'allowing our comedians and cartoonists to use copyright material for the purposes of parody or satire'. (2nd reading speech, copyright amendment bill). Would the songbook be protected?

The fabulous thing about this example, actually, is that we don't know. According to various copyright owner groups who submitted to the Senate recently, it shouldn't be allowed, because this is one of those cases where it isn't strictly necessary for the Fanatics to use the copyright material to write their funny songs. They are not poking fun at the Monkees or their ouevre, but rather, at the English. It's closer to satire than parody in other words. And the exception, because it currently uses the three step test in international law as its conditions, doesn't cover all satires/parodies. The court would need to decide whether this kind of satire was a 'special case' warranting an exception. And who knows what result it would reach?

Would it be protected? All I can say is that it might be. You'd have to hope you got a sports-mad judge. Of course, what's happened is that the stuff has been pulled, because the Fanatics aren't prepared to go to court about it. But I'd be interested in other people's views. In more practical terms, it sounds to me like a case for collective action - that is, people should take steps to pass around the words regardless - EMI might be able to sue one person, but surely they can't sue everyone? Would they WANT to look quite that humorless?

[Update 1: Colleague Melissa De Zwart points out that there should probably be a public interest exception for this use. But only for the Australians of course. If the BRITISH did it they should be punished with all those on the spot fines that the government is introducing. Naturally. (and yes, both Melissa, AND I, are JOKING here)]

[Update 2: Emily in comments asks the question whether EMI even own any interest here - I do take this point. I guess I had assumed that EMI must own something to be slinging threats around (am I naive? probably). If there are three potential copyrights - lyrics, musical work, sound recording - you would usually expect that EMI would have the sound recording but not the rest. There cannot be infringement of the sound recording copyright; maybe there is authorisation of infringement of the musical work copyright (encouraging people to sing the song - badly of course!) and potential (depending on the degree of similarity) infringement of the lyrics copyright.]

What do we learn from this scenario? We learn that these proposed new laws are very uncertain. I'd love to hear the government's view on this particular situation. In my view, too, we would be less uncertain if the parody exception were framed as a fair dealing exception, and not subject to the three step test. If it were, then at least we would have a familiar framework - and wouldn't be asking the court to determine whether this was a 'special case' of allowable satire.

Our third scenario comes from another reader, Donna Benjamin, who has pointed me to this description on her blog, of a schools competition known as 3in6:

The idea of 3 in 6 is that teams of school kids spend 6 hours, on one day, creating a 3 minute video. There are a range of different categories to enter, and schools across the spectrum, catholic, independant and government, and across the country get involved with great joy and excitement. In the process of making that movie, kids use music they know and like.

Should entries that use copyright material be disqualified? Should the kids just be encouraged to use Copyleft, or Creative Commmons music that gives permission for such use? Should schools be able to pay a reasonable statutory licence fee to cover this sort of usage of copyright material? (as they do for photocopying) should there be a "reasonable portion" and "fair dealing" clause to provide for such usage in an educational context? Should using Creative Commons stuff be a "rule"?

This sounds like fabulous fun, and it actually reminds me of one of the stories in Lessig's most recent book, Free Culture. In that book, he described a sort of mobile facility that enabled kids to make films - expressing themselves in audio-visual language.

My guess is that given the public nature of this activity, it wouldn't be covered by any present exception or statutory license. One solution would be to use Creative Commons material. I seem to recall, recently, a search engine is being created that helps you find 'sounds like' music that is open licensed.

But another if I were the competition organisers here, I would be talking to APRA about licensing before jumping up and down too much. APRA/AMCOS do have a whole bunch of licenses which are admittedly commercial, not statutory. But maybe they could be convinced to provide a license at some kind of discounted rate, as a form of sponsorship deal? Encouraging kids to engage with the music? Before despair, why not try to sell this as a possible win-win for owners and kids? What do other people think?

What do we learn from this scenario? We learn about the effects of a specific exception regime. when you have specific exceptions, these new scenarios aren't just maybe infringing, they definitely are. But what we could really learn is how serious copyright owners are about making licensing possible. The argument, constantly put before the Senate Committee recently, was that copyright owners and users want the same thing: for people to use copyright stuff. We also heard, repeatedly, that the answer was licenses. What I'd like to see here is for the competition organisers to ask, and for the copyright licensors to put their money where their mouth is and prove they can negotiate a reasonable license so that everyone does in fact win. Wouldn't that be nice?




Tuesday, November 21, 2006
Patents and the Doha Declaration: Oxfam Reports
 
Released this month: Oxfam's Report on the Implementation of the Doha Declaration. The Doha Declaration was meant to make things easier for developing countries suffering from health crises and requiring access to patented medicines.

Oxfam's report is, in a word, damning. This from the summary:

Since 2001...rich countries have failed to honour their promises. Their record ranges from apathy and inaction to a dogged determination to undermine the Declaration’s spirit and intent. The USA, at the behest of the pharmaceutical industry, is uniquely guilty of seeking ever-higher levels of intellectual property protection in developing countries.

The USA has negotiated numerous bilateral and regional free trade agreements (FTAs) that impose what are known as ‘TRIPS-plus’ intellectual property rules, weakening or eliminating the public health safeguards allowed under TRIPS. Patented medicines thus have even higher levels of intellectual property protection than required under TRIPS, delaying the availability of affordable generics. The USA has also pressured countries for greater patent protection through threats of trade sanctions and through the WTO accession process.

...

The ‘Paragraph 6 Public Health Solution’ has not facilitated delivery of affordable, generic medicines to poor countries with insufficient or no drug manufacturing capacity. Rich-country intransigence during negotiations created barriers that made the solution almost unworkable, and these countries are in no hurry to make the solution work. Canada, which first implemented the solution, made it even more complicated.The USA has not enacted legislation, while the EU only approved regulations implementing the solution in mid-2006.
Also of interest, this discussion of the report on the International Economic Law and Policy Blog, canvassing the idea of whether the imposition of TRIPS-Plus terms in RTAs and FTAs might in fact be WTO non-compliant - that is, illegal.
More media on copyright reform in Australia
 
This time, Prof Brian Fitzgerald (QUT) on the ABC's Law Report. Transcript (and audio download) available here.
The Australian Attorney-General on Google Book Search
 
One of those issues that has been much debated in the US in copyright circles is whether Google's Book Search (the project involving digitisation of books and the making of those books searchable) is legal or illegal under US Copyright Law. The issue is whether this is fair use or not. We've had academics dividing over the issue (on the pro-book search side, see Lessig, on the anti side, see Siva V). We've had major public policy events over the issue. And we have litigation of course before the courts in the US.

Not to worry for us Australians. Apparently, our omniscient Attorney-General already knows the answer. In his interview last week:
"I think that what Google wants to do is to make lawful activity that they are not allowed to do in the United States. Part of their arguments about search engines and the like really arose from the fact that they wanted to acquire material from some of the very large libraries, copy it all, and use their search engines to search it.They essentially want to become the organisation handling the copyright..."
Now, I'm not going to express any views here about whether or not Google Book Search is fair use. Because, you know, that's a US issue, that is before US courts. But isn't it great to see that our AG is not prejudging the issues...

[update: where are my manners? Hat tip, Matt Rimmer for pointing this quote out.]
Sigh. Let's try those FAQs again.
 
Sigh. Another day, another copyright story in the media. And no matter how many times I've tried to explain the issues to journalists and everyone else, we keep coming back to the same assertions, which betray a poor understanding of what is going on.

Once again now, the simplified version - what do, or don't, the criminal provisions in the Copyright Amendment Bill do?
  1. Does the Copyright Amendment Bill introduce new offences? In general, no, except in 2 areas. In the area of Pay TV, it becomes a criminal offence to access a subscription television service without authorisation. In the area of anti-circumvention law, it becomes a criminal offence to circumvent an access control TPM with the intention of obtaining commercial advantage. In other respects, the law does not introduce new offences. The government's previous policy was that criminal law shouldn't intrude into the domestic/private sphere (it wasn't necessary). The FTA requires a change to that policy.

  2. Does the Copyright Amendment Bill expand criminal liability for copyright infringement? Yes, it does, because it introduces strict liability offences. Thus (to generalise), you can now be criminally liable and fined in circumstances where you were not aware of the circumstances that made what you were doing an infringement. For example, if you did not know the copy you were dealing with was an infringement, you wouldn't have been a criminal before; now you are.

  3. Does the bill make it more likely that people will be subject to fines or criminal law? Yes, because the whole aim of the law is to make copyright law more readily enforceable - to give police tools to charge people without having to go through the whole court process. However, the effect on the ground of these laws will depend on what resources police dedicate to their use/enforcement. Last word from the Federal Police was that they hadn't formed any decided view on the new provisions (!!! You mean they weren't integrally involved in the drafting?????)

  4. Are the criminal provisions targetted at 'pirates'? On their face, no, because several of the provisions - particularly in the performers' rights area - don't require that you be acting for commercial gain or on a commercial scale (the usual definition of 'piracy'). However, it lies within the power of the government to write guidelines on enforcement in such a way that the laws will not be enforced against ordinary people. We can take some comfort from the AG's letter to the editor (SMH) last week, which asserted that ordinary consumers would not be targeted. Until the government give us official notification of when the laws are intended to be enforced, we won't know the effect on consumers.

  5. Are you a criminal for using your iPod? On the face of the law as currently drafted, you could be (although the chances of that being enforced are, I would say, slim to none). The analysis works like this:

    - s132AL makes it a criminal offence to possess a device, which is to be used for copying material protected by copyright, and the copy is infringing. This is a strict liability offence: no intention to use the device for infringing or commercial use is required;

    - copies made on iPods are currently infringing copies (because there is no exception for private copies/format shifting). The new law proposes a format-shifting defence, but on the current draft, that exception does not in fact legalise iPod use (because most iPod use involves people making - and keeping - two copies in mp3 format)

    - thus, if you have an iPod, it (under the current draft) is a device which will be used for making infringing copies - hence possessing it is a criminal offence.

    Now, to avoid this result, all the government has to do is (a) draft the iPod exception properly, to fit the technology, and/or (b) remove the strict liability offence.
    Further, by the way - the government should do both (a) and (b). If they just draft the iPod exception properly, people with iPods may be ok, but people with the next new technological device (like the Zune) won't be protected from criminal liability.

    Even once the law has been amended in either or both of these ways, you could be criminally liable if you deal in copies on a commercial scale, or distribute them to an extent that prejudices a copyright owner (for example, you sell your iPod with some songs still on it) or use your iPod to record a performance without permission (if this part of the law remains unchanged).
Note one thing. People can point out - as several do, in today's Australian article - that the criminal provisions are not new, and that is accurate. However, to suggest that these changes are not pretty radical is disingenuous. They might not create new offences, but they do, not insignificantly, expand both the likelihood of being charged, and the scope of liability.

And calling the whole thing scaremongering is a little strange too. Frankly, a lot more scaremongering could be done if people wanted to. Like people could point out that selling 100 CDs could in theory, on the current drafting, lead to a $21 million dollar fine ($4 million on the spot). It won't of course. No police officer would be that silly. But an issue no one is really talking about is just how high these fines are going to go. With $6,600 ($1320 on the spot) per infringement, and over 30 infringements per CD sold, it could go pretty high, pretty quickly, yes?

Update: Brendan Scott, in comments, takes me to task, telling me that my distinction - between 'new offences' and 'extension of existing offences' is inaccurate. He's entitled to his view of course.

And yes, of course, you can say that well, there are new provisions, which weren't there before. And the entire point of the way I've broken up the issue is to point out that conduct not previously criminal will now be criminal.

The reason I draw a distinction (and I stand by it) is because I think that an argument along the lines of 'yes there are' 'no there aren't' [new offences] doesn't get us anywhere.

I want people to understand why you have lawyers (and the Attorney-General) saying there aren't new offences, and I want to show where exactly the fallacy lies in that superficially accurate, but incomplete argument.