November 2006

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).


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: (more…)

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.

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.

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 of my other blog, Weatherall’s Law.
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: (more…)

Here are some first thoughts on the Amendments the government has proposed to its own Copyright Amendment Bill. Get the amendments here.  Get the explanatory memorandum on the amendments (supplementary EM) here.  Detailed comments over the fold, but here’s the conclusion.

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 does cover 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.

Even with these amendments, 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.


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.

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.

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.

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.

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!

This editorial 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.

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 over the fold. (more…)

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)

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.

Next Page »