October 2006

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

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

The Exceptions and Digital Agenda Bill includes some interesting stuff:

  1. Time-shifting (taping to watch later)
  2. Format-shifting (making a copy in another format)
  3. The rather strangely-named ‘Certain Purposes’ Exception (encompassing extra flexibility for educational institutions, libraries and archives, and parody and satire)
  4. Some changes to the Digital Agenda Act reforms, changing the rules relating to communication.

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

  1. On fair use: they started out thinking about fair use and the ways in which US law might be more generous to users than Australian law. Having identified the instances where US law was more generous as a result of fair use, they sought to encode those instances in specific language. Thus we get some very limited private copying exceptions, we also get parody and satire.
  2. On the other stuff: they’ve taken the opportunity to clarify/change some stuff that came up in the Digital Agenda Review – ‘clarifying’ parts of those reforms which were unclear or unhelpful.

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

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

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

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

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

And apologies for my not posting over the past few weeks — I recently changed jobs and am working things out with my new employer. I hope to be back soon!

Apologies for the spam deluge that has been hitting comments lately. We’ve turned comments off until we decide how to deal with the issue. Comments on my posts can still be placed on Weatherall’s Law, or emailed to us of course!

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