October 2006

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

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

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

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

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

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

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

  1. The law will be successful in preventing the printer cartridge/garage door opener cases, at least as we are currently seeing them.
  2. The law will allow a court to make a sensible judgment about whether a TPM really is being used in connection with copyright. In doing so, an Australian court could draw on the reasoning in Stevens v Sony and the US cases on what doesn’t fall within the DMCA.
  3. It is not clear how much this law will be a problem if you wish to make competing, unauthorised devices which play or render DRM-protected media formats, such as DVDs, or iTunes songs – regardless of whether your device facilitates copyright infringement or not. It might be a problem. It might not.
  4. To do them credit, the government appears to have fixed a big problem I pointed out with the interoperability provisions (not claiming credit, just noting that the issue has been solved) (although there is a drafting error needing fixing).
  5. This law does nothing for the person who wishes to make ‘fair dealings’ of copyright-protected and DRM-protected material. If you wish to ‘splice’ protected stuff in, even if it is a fair dealing, you will have to find unprotected formats, however you can. This last, however, was probably inevitable.
  6. Particularly in relation to the latter issue, much will also depend on the attitude that the Department takes in exercising their power to make ad hoc exceptions to the access circumvention ban. If they take an approach protective of user rights, the availability of ad hoc exceptions is the potential dark horse of these laws in Australia.

Over the fold, the detail that supports these summary conclusions. As always, I’m open to being corrected on any of the conclusiosn below. (more…)

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

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

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

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

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

  1. We have strict liability offences for other property offences. what’s different about copyright?
  2. The offences apply to commercial conduct, not the kinds of things that ordinary people do, and it is right to treat commercial operators who are infringing copyright on a commercial scale as criminally liable.
  3. Strict liability may be needed because you have people – say, the lowest link in the copyright infringement foodchain, like the guy at the market selling the infringing stuff – who may not know what they are doing is infringing, who never turn their minds to the issue at all. Or perhaps we have the guy with the backyard business in burning CDs. He’s not thought about copyright either. But what he is doing is wrong, and we want a way to send that message without being completely draconian about it and sending the guy to jail. On this reasoning, what we want, perhaps, is a system of graded penalties – in particular, low-level on the spot fine type penalties – that can be used against this kind of individual, without the whole rigmarole of the court process, but which can be used to send a clear, direct, immediate message that this is wrong, criminal, infringement.
  4. It is not feasible, or desirable, to have just one level of offence and one level of penalty. Far better to have a graded system of strict, summary, and indictable offences – with only the latter two carrying the risk of jail time.
  5. What are the situations where, under these laws, they might have unintended reach or consequences? Can you identify situations where the laws would reach, but the resulting penalty would be inappropriate?

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

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

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

That’s good. I hope they’re talking to the Zune people too. Because the Zune works differently from the iPod. (more…)

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

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

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

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

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

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

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

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

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

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

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

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

So, now I’ve looked at the provision again, alongside the Explanatory Memorandum. I don’t know that it does that anymore. In fact, I don’t know what it does anymore. The drafting is so confusing, that I’m really, really lost.

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

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

Big calls? Let me show you. (more…)

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

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

In Australia, these things are not patentable. (more…)

The Senate, yesterday.

Senator Bartlett (Democrat, Qld):

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

Senator Ludwig (Labor, Qld):

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

Indeed. Think about it:

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

Yup, it’s a joke.

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

The bill includes:

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

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

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

Information about the committee process can be found here.

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

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

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

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

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

  1. Pete Black’s original post
  2. Joshua Gans
  3. Me
  4. The Age story
  5. Techdirt’s commentary
  6. IPKat (the commentary most sympathetic to Nine’s action).

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

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

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

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

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

  1. there will now be offences of strict liability – that is, offences for certain commercial dealings in copyright material which do not require proof that the person knew they were dealing with infringing material;
  2. a system of ‘on the spot fines’ for copyright infringement.


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

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

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

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

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

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

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

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

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

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