LawFont.com

The Internet and blogosphere have been rife, just recently, with a story that first emerged in The Australian. The story went under the headline: ‘Copyright makes web a turn-off’, and came with this as the rather glorious (and alarmist!) first paragraph:

‘Schools have warned they will have to turn off the internet if a move by the nation’s copyright collection society forces them to pay a fee every time a teacher instructs students to browse a website’

What on earth could be going on? Well, I admit it, I’ve been hearing about this for some time, and I really should have blogged it before now. But following comments (and ‘please explains’) from both Michael Geist, and Michael Madison, some commentary on Boing Boing, and by Warwick Rothnie, and the emergence of the story on the Linux Australia listservs, it’s definitely time to weigh in.

Is such a radical argument being made? Oh, yes. The Copyright Agency Limited (CAL), an Australian collecting society isn’t demanding that schools ‘turn off the internet’. But they ARE demanding that schools pay when students are told to look at stuff. claiming that when students are told to look at sites online, that is a remunerable activity, and hence something that should be included in calculating rates that schools pay under the statutory license. The argument is a step in the more immediate question, which relates to what questions are to be put on an electronic use survey. [updated to clarify – Monday, 6 March 2006, 5:30pm].

Will CAL’s argument succeed? No. In my view, pigs are merrily flying by the window of the court or tribunal that would uphold this argument. Not a single person I have run this argument by – not a single one, and I’ve run it by a lot of people who are experts in Australian IP law – think it will – or should – succeed. These arguments are so contrary to the ordinary meaning of the words used in the Act, so contrary to the intentions of the Digital Agenda Amendments, so contrary to the framework of the Act, so contrary to the views of the commentators, and so inconsistent with such caselaw as exists, that they should be rejected, out of hand.

What I particularly don’t get is this: why make the argument? Let’s call it like it is. Boiled down to basics, the argument says that schools should pay for telling students to view stuff that is available, to be freely viewed, on websites. Like the Age newspaper. Like the NASA website. Let’s think through the logic of this one:

1. Copyright owner puts stuff online, knowing people will, shock horror, probably look at it.
2. Copyright owner knows that people looking at the stuff online will not pay. Presumably, then, copyright owners being rational human beings and all, they have done cost/benefit analysis and decided that, despite inability to charge for stuff online, it is still worth putting it up.
3. Statutory license is created in Australian law to make sure that copyright owners don’t lose out when schools copy stuff for their educational purposes.
4. Statutory license should include stuff online, so that copyright owners get paid for … um … uses of the material they were not expecting to get paid for.

Nope, I don’t get it. Please, someone, tell me what I’m missing here. Because if I could see a reason why copyright owners were suffering as a result of teachers telling their students to view material online, I would perhaps be more inclined to be sympathetic. But I’d be grateful if anyone could enlighten me how there is any loss to copyright owners here.

I also don’t think that the government ever intended such a result – that schools would pay for telling people to look at stuff. Why, I elaborate below.

This kind of argument does, I admit, make me a bit cranky. I believe in copyright. I believe authors do deserve to be paid for their creations, and investors in creativity deserve to be paid, assuming they want to be. And this kind of argument makes me really cranky because it gives copyright a bad name. To quote Jane Ginsburg:

‘I have a theory about how copyright got a bad name for itself, and I can summarize it in one word: Greed.

Corporate greed and consumer greed. Copyright owners, generally perceived to be large, impersonal and unlovable corporations (the human creators and interpreters–authors and performers–albeit often initial copyright owners, tend to vanish from polemical view), have eyed enhanced prospects for global earnings in an increasingly international copyright market. Accordingly, they have urged and obtained ever more protective legislation, that extends the term of copyright and interferes with the development and dissemination of consumer-friendly copying technologies.’ (Jane Ginsburg, ‘How Copyright Got a Bad Name For Itself’ (2002) 26 Colum. J.L. & Arts 61)

Both users, and copyright owners can be greedy sometimes in the way they make arguments. The debate tends towards a pitched battle at times. In the context of the whole file-sharing thing, I think that quite often, users do get greedy, thinking they should be able to do anything. Wrong. But in this case, I think, it happens to be a copyright interest. And we do here have a broad, unreasonable, ambit argument – and I do think that when that happens, it does damage the credibility of the copyright cause. I think we can see that in the way that the press and blogosphere has reacted. And that makes me cross, because it makes things harder for everyone who believes that the basic system of copyright is a good idea.

Now, CAL may be concerned that where, in the past, teachers have photocopied, say, newspaper articles to give to students, now they are telling them to go look at those articles themselves. In the past, the photocopying was necessary, because students might not otherwise be able to see the article (you know, Dad took the newspaper to the office, or my parents don’t get newspapers). Now, with stuff staying online longer, that has become less necessary. So, presumably, there is a chance that telling students to view stuff might cause the amount of copying in schools to decrease over time. But if so, that’s a matter for the copyright owners, not CAL. And the copyright owners speak by putting the stuff online.

Should the government step in? Now there’s an interesting question. The situation at the moment, as far as I know, is that the argument is being made in a case before the Copyright Tribunal. An application is being mooted that the question (as a legal question) could be referred to the Full Federal Court for determination. Should this have to happen? No. It involves frankly wasted legal costs.

OK. That’s the broad commentary on the argument. Despite my views, and those of everyone I’ve told about this argument, the fact remains, the argument is being seriously pursued by CAL, who are represented by two leading counsel. So I want to elaborate just why I do not believe this argument will succeed. What follows, of course, is just my opinion. Hell, I could be wrong. But let me put out the thoughts, anyway, on the understanding that it is, just, opinion.

I should also note something else: I’m just commenting here on one argument I’ve been told out in the case. It does not represent CAL’s entire argument, as I understand things. And since the proceedings are at a pretty early point, much could happen from here.

To do so, I’m going to have to get legal. Really, desperately, technically legal. If you’re not that way inclined, you may find the rest of this post hardgoing. Forgive me. You may not need to read the rest. Click here for the next post on the blog.

What the? (A legal primer/background to the case)

Schools use copyright material in Australia under a statutory license (Pt VB of the Act). They pay a yearly fee, usually determined on a per student or per page basis, for copying copyright material, and for communicating copyright material to ‘the public’. (Two of the exclusive rights of the copyright owner in Australia are the right to copy, and the right to communicate to the public. The statutory license allows schools to do this as much as they like, so long as equitable remuneration is paid to copyright owners. Remember, that Australia has no fair use defence). The system (at least for literary/artistic works) is administered by the Copyright Agency Limited. The Copyright Tribunal sets rates, and surveys are done to see what copying is happening. There is a current dispute between CAL and the Schools of Australia, regarding the rates appropriate for electronic copying/communication/use. In that context, CAL is saying that one things that should be included in the ‘survey’ used for sampling – to see how much is going on – is when teachers ‘Tell Students to View’ material online. The Schools say this shouldn’t be on the questionnaire. CAL apparently have several arguments as to why it should be. But the one that is generating all the heat and light right now is this one: that when students view something online, a remunerable act occurs.

But wait a minute. How can it possibly be argued that schools should pay in this situation? Schools pay for their of copying or communicating a work, for their educational purposes. If a student clicks on a link, or goes to a site, how is the school doing any copying? Or communicating to the public? CAL’s argument is that when a student clicks on a link they have been told to view, or types in the URL, that student is communicating the work to the public – because they are electronically transmitting the material to themselves, and they are the ‘copyright owner’s public’.

Why the argument won’t succeed

So much for the background context. Now I want to think about just why this argument is unconvincing. Just to remind you, the argument is as follows:

When a student clicks on a hyperlink, or types a URL into their browser window, they are communicating the work to themselves, that they are doing so on behalf of the school, and that communication is to the public – because the student is the copyright owner’s public.

Now, I don’t know about you, but when I think about ‘communication to the public’, I figure we’re talking about things like:

1. Putting stuff on a website, or
2. Broadcasting stuff or
3. Beaming something to all the employees of a company

You know, stuff that looks like, well, communicating. To the public and all. Kind of like broadcasting, or at least vaguely analogous activities. But can the student, who clicks on a link, be said to be ‘communicating’? Or are they just receiving a communication? ‘Communicate to the public’ is defined in section 10 of the Act, to mean:

‘make available online or electronically transmit (whether over a path, or a combination of paths, provided by a material substance or otherwise) a work or other subject-matter, including a performance or live performance within the meaning of this Act.’

Under this definition, there are two possible acts. One is putting stuff up on a website. Students aren’t doing that, obviously. The other is ‘transmitting’. As a matter of common sense, you would think that ‘transmit’ meant ‘send out’, right? Like broadcasting. In fact, if you look at the dictionary, that’s what it says too. The Oxford English Dictionary (online version) offers the following meanings for ‘transmit’:

‘To cause (a thing) to pass, go, or be conveyed to another person, place, or thing; to send across an intervening space; to convey, transfer;
To convey or communicate (usually something immaterial) to another or others; to pass on, esp. by inheritance or heredity; to hand down
To send out electric signals or electromagnetic waves corresponding to (an image, a programme, etc.).’

Don’t know about you, but most of these meanings seem to indicate that something is transmitted from A to B, and it is A, not B, which does the transmitting. Of course, this is consistent with the dictionary definition of ‘communicate’:

To give to another as a partaker; to give a share of; to impart, confer, transmit (something intangible or abstract, as light, heat, motion, a quality, feeling, etc.)
To impart (information, knowledge, or the like); to impart or convey the knowledge of, inform a person of, tell.

Again, sounds to me like the thrust of these definitions is that communication passes from A, to B – and A is communicating, not B. So how could CAL make the argument? Well, they would say that you have to look at the deeming provision. You see, the Act also has a provision that dictates who is held responsible for a communication. Section 22(6) says that:

‘For the purposes of this Act a communication other than a broadcast is taken to have been made by the person responsible for determining the content of the communication’

Now, again, common sense would say that the person ‘responsible for determining the content of the communication’ would be the person who provided the content. Put it on the website to be communicated. Put in the pretty pictures. Wrote the text (or paid someone to write it). Chose the content to be put up.

But ah-hah! No! Perhaps it is the student who ‘is responsible for determining the content of the communication’, because it is the student who selects what they are going to view. Never mind that the student hasn’t seen what they are about to view. Never mind that in most cases, unless the student is a prophet (and students’ exam results would tend to indicate otherwise) immediately prior to receiving the website they couldn’t tell you much about what they were about to view. How about using the dictionary again? Let’s look at that word ‘responsible’ for a moment. The Oxford English Dictionary offers us this definition:

‘Answerable, accountable (to another for something); liable to be called to account’

I’m having a lot of trouble imagining the student being ‘accountable’, or ‘answerable’ for determining the content of a communication. Imagine student clicks on a link, which, unbeknownst to them, happens to contain ‘forbidden material’. Let’s say the website turns out to have banned material. The student doesn’t know; they haven’t seen it. Would we hold them accountable? Or would we blame the creator/host of the website? I know who I’d be choosing to hold ‘accountable’. (Should the teacher be responsible for referring students to the link? Yes, but for the reference, not for the content of the site).

In summary: I think it’s pretty clear that the argument is just unsupportable as a matter of common sense and the ordinary meanings of words. But after all, common sense isn’t always a good guide to copyright law in a country where taping tv to watch later is still an infringement. So let’s look at a few more indicators.

The legislative history says the argument won’t succeed

Let’s have a look at the legislative history. Thelegislative history says several times that browsing the Internet will not be an infringement:

1. Explanatory memorandum (original), paragraph 63, noting that an exception in s 43A is intended to ensure that ‘browsing (or simply viewing) of copyright material’ is not infringement; so that ‘the technical processes which form the basis of the operation of new technologies such as the Internet are not jeopardised’
2. Explanatory memorandum (revised), paragraph 69 (identical)
3. Speech of Senator Nick Bolkus: noting that ‘There is a new exception in the bill for temporary copies made in the course of the technical process of making or receiving communication. This includes the browsing of copyright material online.’

Note also that you will search that legislative history in vain for any example that implies that the communication right is intended to apply to receipt, as well as sending. I think it would also be fair to note, in terms of the legislative history, that the right to communicate works to the public replaced (and of course expanded) the right to broadcast works, and the ‘cable’ right (or diffusion right). Both of these rights that were replaced were classic ‘broadcast’ type rights, aimed at ‘one to many’ communications (and under which the broadcaster was the one liable). Don’t you think that, if the government intended to completely reshape these rights to hold recipients liable, it would have noted that fact? Again, you will search in vain for any such reference in the legislative history.

Even more comprehensive are the comments in the 1997 Discussion Paper that preceded the Digital Agenda Reforms, a paper called Copyright Reform and the Digital Agenda. At that time the government were considering two rights, a right of transmission and a right of making available. Notably, at that time, this is how they described the ‘transmission right’:

4.11 The proposed transmission right would apply to transmissions to the public in the traditional non-interactive sense of “broadcasting”, that is, the emitting of signals from a transmitter to a receiving device at a time chosen by the person making the transmission. The person receiving broadcast can only receive it at the time when the person making the broadcast chooses to make the transmission.
4.12 The proposed new transmission right would be separate from the existing public performance rights in the Act. This would result from the proposed definition of “transmission” as requiring the use of reception equipment to perceive the material transmitted.
Sounds like a one-way act to me. I should also quote the section on browsing:
4.60 The act of “browsing”, or simply viewing, copyright material on an Internet site is obviously not caught by the proposed right of making to the public. Browsing is simply the viewing by a person of material – there is no act of transmission by the site proprietor and the material has already been made available to the public.
4.61 Browsing would appear not be an exercise of the transmission right by the browser. As browsing usually, if not invariably, results in a temporary copy of the material being browsed materialising in the browser’s computer terminal, there is an issue whether such a copy should be covered by the reproduction right or, alternatively, should be within the exception for incidental copies discussed above. It is proposed that the incidental copy created in the course of browsing would not infringe the reproduction right. As discussed above in relation to the incidental copy exception for transmissions, if at any point a stored temporary copy is used for any other purpose than simply being part of a technical process to enable browsing of the copyright material, that use – if it constituted an exercise of the copyright in the material – would be a separate act and would require the permission of the copyright owner.’

In other words, at that time, the government took the view that (a) there was no communication by a browser, and (b) that any reproductions by a browser should be covered by an exception. Could things be any clearer?

The framework of the Act says the argument will not succeed

Another reason this argument will not succeed is because it is inconsistent with the way the Act is drafted, for a number of reasons. Let me pick up just a couple:

1. At the time of the digital agenda amendments in 2000, the government wanted to make sure that people were not infringing when they ‘browsed’ online. To do so, the government put in exceptions to prevent any copies made in the course of browsing from being infringements. No mention of an exception to the communication right for browsers. Why? Because they weren’t seen to be necessary. (this is acknowledged in Ricketson & Creswell’s Looseleaf, at [9.405])
2. In creating these exceptions, the government wrote s 43A, which provides that ‘The copyright in a work, or an adaptation of a work, is not infringed by making a temporary reproduction of the work or adaptation as part of the technical process of making or receiving a communication’. In other words, receiving a communication is a different act from making one. This is flatly inconsistent with CAL’s argument.
3. How does s 49(5A) make sense? Under this provision, a library may make a work, acquired in electronic form, available to members of the public online within the premises of the library, provided that users cannot, by using any equipment supplied by the library or archives, communicate the article or work. But if the users are ‘communicating’ when they view the material, it becomes impossible to comply with this provision (unless s 43B provides an exception to it. But s 49(5A) has been in the Act since 2000. 43B only came in with the amendments in 2005. Surely, when s 49(5A) was enacted, the government contemplated some use for it?).

I’m sure I could find more provisions that show the assumption was that communications are made to and from. But I just can’t be bothered. These ones should suffice.

The Australian case-law says the argument will not succeed

We can also look at what the Australian courts have said so far about the communication right. The right has been considered in Cooper, and briefly in Kazaa. Given that Kazaa has just been heard, and given too that Cooper considered the communication right more deeply, let’s look at Cooper. In Cooper, Tamberlin J considered an argument that a website, carrying links to material on third party websites, was ‘communicating’ the linked-to material to the public. Tamberlin J rejected this argument, although he did hold that the website authorised infringement by the third party website (even this holding would have to be controversial, I think, but that’s another story.)

The relevance here though is that Tamberlin J held that ‘it is the remote websites which make available the sound recordings and from which the digital music files are downloaded as a result of a request transmitted to the remote website’. As I’ve pointed out in an earlier post on the Google case, Tamberlin J here is adopting a kind of ‘server theory’ of liability under the right to communicate. Rightly, I think. What Tamberlin J was saying was that people along the line – people who don’t “determine”, “formulate” or “create” the content of a website, that don’t design, operate or own a website do not ‘communicate’ the material on a website.

Tamberlin J also considered whether Cooper was ‘transmitting’ the recordings, holding:

‘the actual transmission of the music sound recording begins with the commencement of the downloading of the recording from the remote website on which the recording is located to the end user. I accept that the electronic transmission of the sound recording to a user who triggers the hyperlink on the Cooper website is a communication to a member of the public from the remote website, however, it is not a transmission from the Cooper website.’

It seems to me that it is implicit in this statement that the transmission is from the third party website to the user. True enough, Tamberlin J did not have consider whether the user was also ‘communicating’. But the sense of Tamberlin J’s judgment is unidirectional communication.

CAL might also consider this injunction by Tamberlin J in Cooper:

I do not consider that such a literal analytical approach, namely, a word-by-word dissection of the dictionary meaning of the expression “make available online”, is appropriate in this case. As Learned Hand J said in Helvering v Gregory (1934) 69 F.2d 809 at 810-811: ‘… the meaning of a sentence may be more than that of separate words, as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.’

And what do the commentators say?

The main people to write on this in Australia were Christie and Dias, in an article in the Sydney Law Review. They concluded that a communication was made by the sender.

Lahore’s looseleaf also seems to adopt the same approach, in its discussion of the Cooper case:

Tamberlin J rejected as “artificial in the extreme” the argument that Cooper had determined the content of infringing transmissions by permitting hyperlinks to remote websites where the files were stored. Having referred to the legislative history in response to APRA v Telstra, his Honour held that Cooper did not “determine”, “formulate” or “create” the content of the remote websites; that was the entitlement and role of the person (or persons) who designed, operated or owned the remote websites. His Honour rejected Universal’s attempt to rely on Cooper’s power to control what hyperlinks were displayed on his website. This must, with respect, be right as the attempt to rely on control indicates that Cooper’s involvement, if infringing, was indirect or secondary — his conduct by his website facilitated — to use a neutral term — the infringing activity of others.

In summary

OK, let’s summarise. I’ve argued that the ordinary meaning of the words of the statute, the legislative history, the framework of the Act, the comments in the case-law and the comments of academics all tend not to support the argument that a person clicking on a link could be said to be communicating material to themselves and hence to the public. Let me just note, that I looked for contrary examples. I really did. I wondered whether someone had made the argument, or whether an example had been given in the legislative history somewhere that suggested that persons clicking on links or typing in URLs could be said to be communicating to the public. I really couldn’t find anything. I’m more than happy to be corrected, of course.

Oh, and then there’s the question of whether the communication is to the public

So far, I’ve left to one side another issue: and that is, when a student clicks on a link, and views the site, are they communicating to the public? Now, the only possible ‘public’ is themselves. Can a communication to yourself be a communication to the public?

Now, the concept of the copyright owner’s public is, well, a pretty circular one in Australian law. No doubt about it. The High Court has, after all, held (Telstra v APRA) that when music is played by a company, to a person on the phone and on hold, then that is ‘to the public’. The view, basically, has been that even broadcasts that are received in private circumstances can be commercial, and of a kind that a copyright owner is entitled to consider their own. Hence they can be considered ‘to the public’. Now, Telstra v APRA was possibly a high water point for what might be considered the ‘copyright owner’s public’. But at least APRA didn’t hold that communicating to myself could be considered communicating to the public.

Consider the broader implications for a moment. On this reasoning, whenever I click on a link online, I am communicating that material to the public (ie, me). That is true whether I read an article on The Age (communicating the text to the public), or when I listen to TripleJ’s streamed radio broadcast (communicating the broadcast to the public).

On this argument, if a person sings Britney Spears in the forest, and no one is there to hear it (thank the lord), then that person does still owe someone a royalty – even when no one is there to hear the notes – because the person performs ‘to himself’, and they are part of the copyright owner’s public. I do appreciate that the concept of the ‘public’ is pretty circular (public for which copyright owner is entitled to be paid = copyright owner’s public = public copyright owner entitled to consider they should be paid for), but on this argument, the concept of ‘public’ pretty much disappears up … never mind.

And you know what? There’s still a further issue: and that is that the student would have to be communicating to him or herself on behalf of the school. I’m not even going to get in on that. Of all the parts of this argument, that’s the one that looks at least arguable on some level.

The broader implications of the argument

Does the argument being put in this case only matter for schools (and universities, being under the same broad statutory license scheme)? Well, no. You see, this argument, if upheld, would make every act of browsing the Internet into something the copyright owner has the right to control, subject only to exceptions or license. Most of the relevant exceptions provided in the act exempt temporary copies, but don’t exempt communications, so they don’t help. Now, in general, you would expect, all the browsing that goes on online is impliedly licensed when people connect their stuff to the Internet. But that’s not much comfort in the longer term. Implied licenses can be revoked by express words of the copyright owner. People could start putting real conditions on their websites. And that would start to get in the way of ordinary browsing activities, potentially. So the argument does have broader implications.

Some final comments

A couple of final comments are appropriate. I noted at the outset that one reason why this argument might be being made is because CAL are concerned that increasing use of the Internet in schools will cannibalise the copying previously made under the educational statutory licenses. If teachers, and lecturers provide lists of links, instead of copies of readings, CAL might have reason to be concerned that copying will, indeed, drop. I can understand such a concern. But there are two reasons why it should not be dealt with this way.

First, as I noted at the outset, remuneration is provided through the statutory licenses in recognition of the fact that copying is an exclusive right of the copyright owner, and most particularly, because copyright owners suffer some loss when copying occurs in schools and universities. This is of course particularly true for educational books. If schools could just copy educational texts, they would buy one and copy. Thus a statutory license is appropriate. The point here is that we are talking about publicly available material on the Internet. The copyright owner in those circumstances makes a choice to put stuff online. They cannot be expecting to be remunerated. If you want to be paid, put it behind a wall.

Second, concerns like cannibalisation should be dealt with openly, through debate. Not by attempting to stretch statutory provisions beyond their natural reach. If copyright owners want us to consider the creation of an exclusive right to view online, let’s have the debate. In Parliament. I think I know which way that debate would go.

One final point. The legal argument I’ve discussed here is only one aspect of CAL’s case, as I understand it. There is more, much more to the whole thing. Given that the argument is about a survey, there may be other, good reasons to include questions on a survey, without this radical argument.