The Final Report of the Senate Standing Committee on Legal and Constitutional Affairs on the Copyright Amendment Bill has now been tabled. The parties were unable to reach a consensus report: we have a majority report (ie, Liberal), a Labor Supplementary Report and Dissenting Comments from the Australian Democrats (Senator Bartlett).

Majority recommendations, and a discussion, over the page. Interesting too, that today we have copyright hitting the SMH front page.

So here are the Majority recommendations:

  1. that the Federal Government conduct a public awareness campaign and develop a ‘plain English’ consumer guide on the meaning and effect of the amendments contained in the Bill in order to assist people to understand their copyright rights and obligations under the Copyright Act 1968.
  2. The committee recommends that the Federal Government re-examine with a view to amending the strict liability provisions in Schedule 1 of the Bill to reduce the possible widespread impact of their application on the activities of ordinary Australians and legitimate businesses.
  3. The committee recommends that, in developing guidelines for management of the Bill’s strict liability offences and infringement notice scheme, consultation should take place with appropriate bodies representing those to be regulated under the proposed regime, and relevant user-interest groups.
  4. The committee recommends that proposed subsection 111(1) be re-drafted to make absolutely clear that individual consumers are not restricted to watching and listening to broadcast recordings in their own homes.
  5. The committee recommends that Schedule 6 of the Bill be amended with respect to format-shifting to specifically recognise and render legitimate the ordinary use by consumers of digital music players (such as iPods and MP3 players), and other similar devices.
  6. The committee recommends that the proposed amendments to the fair dealing exception for research and study in Schedule 6 of the Bill be clarified to make clear that only reproductions deemed to be fair dealings will be restricted and that the scope of the provision allowing any other amounts of reproduction will not be affected, if they are considered to be fair.
  7. The committee recommends that Schedule 6 of the Bill be clarified to make it absolutely clear that libraries, archives and cultural institutions are able to make sufficient copies for the purposes of preservation.
  8. The committee recommends that the scope of the exception for ‘key cultural institutions’ in Schedule 6 of the Bill be clarified to specifically include the ABC, SBS, the Australian Film Commission, universities, research institutions, and other like institutions which hold significant historical and cultural material.
  9. The committee recommends that proposed section 28A in Schedule 8 of the Bill should be amended to clarify that the same range of copyright material currently covered by section 28 of the Copyright Act is included; that is, that section 28A should apply to communication of a work or subject matter as encompassed in section 28, and not only to a sound recording or cinematograph film.
  10. The committee recommends that proposed section 200AAA in Schedule 8 of the Bill be clarified to ensure that caching for efficiency purposes (proxy caching) does not infringe copyright; and to ensure that there is no doubt that the reproduction must be removed after the end of the particular educational course for which it was made.
  11. The committee recommends that the Federal Government consider the possibility of amending proposed subsection 135ZMB(5) in Schedule 8 of the Bill so that ‘insubstantial’ copying of works in electronic works need not be ‘continuous’.
  12. The committee recommends that the Federal Government consider harmonising the language used in the definition of ‘technological protection measure’ in Schedule 12 of the Bill with the language used in the definition of ‘access control technological measure’, by replacing the phrase ‘in connection with the exercise of copyright’ in the definition of ‘access control technological measure’ with the phrase, ‘prevents, inhibits or restricts the doing of an act comprised in copyright’.
  13. The committee recommends that the specific exception to liability for TPM circumvention to allow for interoperability in Schedule 12 of the Bill be amended to ensure it allows interoperability between computer programs and data to permit interoperable products to be developed.
  14. The committee recommends that Schedule 12 of the Bill be amended to include a prohibition on any agreements purporting to exclude or limit the application of permitted exceptions under the TPMs liability scheme.
  15. The committee recommends that the Federal Government undertake a public review of the impact of the changes made to the Copyright Act 1968 by the Bill, after a period of two years of operation of the provisions.
  16. Subject to the preceding recommendations, the committee recommends that the Senate pass the Bill.

In summary, these recommendations just say to the government – you heard what the interest groups were saying; have a think about the issues they have raised and consider amending.

A couple of comments about what is most striking about these recommendations:

  1. TPM provisions: It’s fascinating to see the ongoing concern about the TPM provisions (anti-circumvention law). Back in October 2005, the High Court ruled in Stevens v Sony, taking a line warning against the using laws protecting TPMs to extend the copyright monopoly. In early 2006, the House of Representatives Legal and Constitutional Affairs Committee issued a Report on TPM laws making the same basic message: these laws should not grant copyright owners absolute rights of control. Now we have a Senate Committee – made up, mind you, of a majority of government members – recommending the same thing: expressing concern about the reach of TPM laws, and arguing that TPMs must be linked to copyright infringement, and that interoperability exceptions should be strengthened. And while I’m on the record as indicating that the laws as currently drafted give room for courts to reach a sensible result – it can’t help but make you wonder – how does it become legitimate for the Executive to stand against the united voices of courts and legislators? People are concerned.
  2. Time-shifting and format-shifting: The consumer issues have resonated. The Committee is pretty concerned that the laws here won’t be sufficient to allow consumers to do perfectly ordinary things. They are right to be concerned. Having read the Attorney-General’s Department response to questions on notice, it is by no means clear that the government does intend to change the exception to allow iPod use. I guess we will see what the government come out with.
  3. Libraries and Universities: The libraries and universities have been heard – in part. I would say however that they’d be disappointed with the weak wording of the recommendation on ‘insubstantial copying’ – it doesn’t really seem like the Committee have understood how significant an issue this is for schools. Although, if you look at their text (para 3.138) they are concerned – they ‘express concern’ and ask the government to ‘limit the potential budgetary impact on educational institutions’.
  4. Criminal laws: On the criminal provisions, I’m relieved to see that the Committee does agree with arguments raised, ‘that there is merit in attempting to limit the scope of these provsiions to the actual activities that the committee understands they are intended to target. The committee is of the view that the strict liability provisions could be narrowed in a way that would significantly reduce the risk of their application to ordinary Australians and legitimate businesses’ (para 3.128). Good stuff. Good also that they suggest that, perhaps, just perhaps, user groups – as the people regulated by these laws – should be consulted on their application? (radical stuff). However, I’m really quite disappointed that the only suggestion they refer to specifically for amendment is one that you could have a first infringement or warning scheme for innocent or misguided infringements. If followed, this approach does not restrict potential liability at all, and would still mean that teenagers and legitimate businesses could be treated as criminal.
  5. Research and study fair dealing: I’m pleased to see that the Committee definitely agrees that there should be no 10% cap on fair dealing for research and study.

More if I think of it.

Also of interest to people following this copyright reform debate in Australia are the Attorney-General’s Response to Questions on Notice: discussing changes the AGD is considering. Notably,

  1. their response on iPods is very guarded, and it would certainly seem that the government has no intention of drafting a law that might fit other players yet to hit the market. Welcome to yesterday’s law.
  2. Also on the minus side is the discussion of the criminal provisions. The response argues that there has been substantial consultation on these provisions, and that further consultation is pointless. I would love to see a list of who was consulted on this, because my strong impression is that no one on the ‘regulated side’ of the equation was shown. One has to wonder why. At least the Senate Committee’s recommendation should make sure this doesn’t happen on the guidelines.
  3. On the plus side, the AGD is apparently considering taking parody/satire out of s200AB and putting it into a fair dealing defence. yes yes yes yes yes yes please do that. It would make a WHOLE HEAP more sense. All credit to them for putting this forward.

Also interesting: the AGD has made available to the public submissions it received on the TPM Exposure Draft (big pdf). This will make interesting reading for anyone interested in the shift that occurred between Exposure Draft and Bill on the definition of protected technologies.

On thing that I think is worth highlighting in addition. Today, there is a story in the Sydney Morning Herald on the criminal copyright provisions – I believe it’s front page news this time. The story is here. But look at this exchange in the Department’s response on the criminal provisions.

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.’

Do you feel assured by that answer? I’m not sure I do. Do you see anything here about not enforcing against ordinary Australians and ordinary businesses? I don’t. And remember that AFACT supplementary submission – they, at least, do not see this as an issue about market sellers only.