November 2006


Brian Fitzgerald’s team at QUT, Brisbane are having an event next Wednesday, 29 November, which will be both a cc Salon (showcase of CC material) and the launch of the OAK Law (Open Access to Law) Report which was released in late September.


When? 29 November 2006
What time? 6pm
Where? The Block, QUT Creative Industries Precinct,
Corner of Musk Ave and Kelvin Grove Rd, Kelvin Grove, Brisbane.
RSVP? It appears not; the event is free, all welcome.
More? More information here (CC) and here (OAK Law)

There is an OAK Law launch in Sydney, too, on 30 November; more here.

It’s always interesting when, simultaneously with law reform here, something happens overseas.

At the moment, Australia is drafting its own OzDMCA. The Bill is due to pass Parliament next week. Australia has drafted a series of legislative exceptions to the laws that ban people from ‘hacking’ (circumventing) DRM (technology used by copyright owners to prevent access/copying of copyright works). It has also issued draft regulations that will create more exceptions to the ban on circumventing access controls. Australia has also instituted a system where exceptions will be able to be sought on an ad hoc basis, when a problem arises.

In the US, every 3 years, the Copyright Office considers whether new exceptions to the ban on circumventing access controls (17 USC 1201) is required. Yesterday, US time, the US Copyright Office issued its third rulemaking on ad hoc exceptions to the ban, under US law, on circumventing access controls on copyright works. They’ve made quite a few recommendations. A list, and comments, over the fold. (more…)

Mental note: never start doing scenario analysis. It leads to more…

I’ve received another question from a reader, about the Copyright Amendment Bill and its criminal provisions: this time as it applies to libraries. Here’s the hypothetical:

Libraries in Australia sometimes purchase copies of DVDs from Amazon or other overseas providers, because they are cheaper than going through the Australian distributor, or because the copyright owner has decided not to license a film for distribution in Australia. Would allowing these copies to be borrowed by staff and students, who may use them for research or show them in class, be impacted by the new laws?

The reason my reader has expressed concern is because:

    1. Australian copyright law bans the parallel importation of films. This means that authorised copies (ie, official copies) of films purchased overseas, when sold or dealt with commercially in Australia, are ‘infringing copies’
    2. The various criminal provisions all talk about selling, distributing etc infringing copies.
    3. So, my reader asks: might the library be ‘importing’ or ‘distributing to an extent that affects prejudicially the copyright owner’ an infringing copy of a film?

      I have to say, that I don’t think it likely that we have a problem here, although as always, if people disagree, I’d love to hear from them.  More analysis over the fold. (more…)

      For all of you who have been asking, I can now confirm: the Australian Copyright Amendment Bill has been listed for debate in Parliament next Wednesday, 29 November 2006.   So I guess sometime between now and then we’ll see if they’ve made any amendments.

      One of the fun things that comes from blogging is that people in the ‘real world’ (ie, not lawyer-hypothetical world or bureaucrat-hypothetical world) can put scenarios – real world type ones – to test against law. And people like me can comment. Over the fold, i analyse three scenarios provided by readers:

      1. The MySpace type scenario, under Australian law;
      2. An amazing recent case – IN AUSTRALIA – in which EMI forced withdrawal of a fun set of song words for blasting the pommies; and
      3. A competition run in schools where kids make 3 min videos in 6 hours – but where they use copyrighted music.

      Bottom line? Looking at these situations makes you realise just how tied up Australian copyright law is. All the innovators are going to move offshore, if they have any sense. (more…)

      This time, Prof Brian Fitzgerald (QUT) on the ABC’s Law Report. Transcript (and audio download) available here.

      Released this month: Oxfam’s Report on the Implementation of the Doha Declaration. The Doha Declaration was meant to make things easier for developing countries suffering from health crises and requiring access to patented medicines.

      Oxfam’s report is, in a word, damning. This from the summary: (more…)

      One of those issues that has been much debated in the US in copyright circles is whether Google’s Book Search (the project involving digitisation of books and the making of those books searchable) is legal or illegal under US Copyright Law. The issue is whether this is fair use or not. We’ve had academics dividing over the issue (on the pro-book search side, see Lessig, on the anti side, see Siva V). We’ve had major public policy events over the issue. And we have litigation of course before the courts in the US.

      Not to worry for us Australians. Apparently, our omniscient Attorney-General already knows the answer. In his interview last week:

      “I think that what Google wants to do is to make lawful activity that they are not allowed to do in the United States. Part of their arguments about search engines and the like really arose from the fact that they wanted to acquire material from some of the very large libraries, copy it all, and use their search engines to search it.They essentially want to become the organisation handling the copyright…”

      Now, I’m not going to express any views here about whether or not Google Book Search is fair use. Because, you know, that’s a US issue, that is before US courts. But isn’t it great to see that our AG is not prejudging the issues…

      [update: where are my manners?  Hat tip, Matt Rimmer for pointing this quote out.]

      Sigh. Another day, another copyright story in the media. And no matter how many times I’ve tried to explain the issues to journalists and everyone else, we keep coming back to the same assertions, which betray a poor understanding of what is going on.

      Once again now, the simplified version – what do, or don’t, the criminal provisions in the Copyright Amendment Bill do?

      1. Does the Copyright Amendment Bill introduce new offences? In general, no, except in 2 areas. In the area of Pay TV, it becomes a criminal offence to access a subscription television service without authorisation. In the area of anti-circumvention law, it becomes a criminal offence to circumvent an access control TPM with the intention of obtaining commercial advantage. In other respects, the law does not introduce new offences. The government’s previous policy was that criminal law shouldn’t intrude into the domestic/private sphere (it wasn’t necessary). The FTA requires a change to that policy.
      2. Does the Copyright Amendment Bill expand criminal liability for copyright infringement? Yes, it does, because it introduces strict liability offences. Thus (to generalise), you can now be criminally liable and fined in circumstances where you were not aware of the circumstances that made what you were doing an infringement. For example, if you did not know the copy you were dealing with was an infringement, you wouldn’t have been a criminal before; now you are.
      3. Does the bill make it more likely that people will be subject to fines or criminal law? Yes, because the whole aim of the law is to make copyright law more readily enforceable – to give police tools to charge people without having to go through the whole court process. However, the effect on the ground of these laws will depend on what resources police dedicate to their use/enforcement. Last word from the Federal Police was that they hadn’t formed any decided view on the new provisions (!!! You mean they weren’t integrally involved in the drafting?????)
      4. Are the criminal provisions targetted at ‘pirates’? On their face, no, because several of the provisions – particularly in the performers’ rights area – don’t require that you be acting for commercial gain or on a commercial scale (the usual definition of ‘piracy’). However, it lies within the power of the government to write guidelines on enforcement in such a way that the laws will not be enforced against ordinary people. We can take some comfort from the AG’s letter to the editor (SMH) last week, which asserted that ordinary consumers would not be targeted. Until the government give us official notification of when the laws are intended to be enforced, we won’t know the effect on consumers.
      5. Are you a criminal for using your iPod? On the face of the law as currently drafted, you could be (although the chances of that being enforced are, I would say, slim to none). The analysis works like this:- s132AL makes it a criminal offence to possess a device, which is to be used for copying material protected by copyright, and the copy is infringing. This is a strict liability offence: no intention to use the device for infringing or commercial use is required;

        – copies made on iPods are currently infringing copies (because there is no exception for private copies/format shifting). The new law proposes a format-shifting defence, but on the current draft, that exception does not in fact legalise iPod use (because most iPod use involves people making – and keeping – two copies in mp3 format)

        – thus, if you have an iPod, it (under the current draft) is a device which will be used for making infringing copies – hence possessing it is a criminal offence.

        Now, to avoid this result, all the government has to do is (a) draft the iPod exception properly, to fit the technology, and/or (b) remove the strict liability offence.
        Further, by the way – the government should do both (a) and (b). If they just draft the iPod exception properly, people with iPods may be ok, but people with the next new technological device (like the Zune) won’t be protected from criminal liability.

        Even once the law has been amended in either or both of these ways, you could be criminally liable if you deal in copies on a commercial scale, or distribute them to an extent that prejudices a copyright owner (for example, you sell your iPod with some songs still on it) or use your iPod to record a performance without permission (if this part of the law remains unchanged).

      Note one thing. People can point out – as several do, in today’s Australian article – that the criminal provisions are not new, and that is accurate. However, to suggest that these changes are not pretty radical is disingenuous. They might not create new offences, but they do, not insignificantly, expand both the likelihood of being charged, and the scope of liability.

      And calling the whole thing scaremongering is a little strange too. Frankly, a lot more scaremongering could be done if people wanted to. Like people could point out that selling 100 CDs could in theory, on the current drafting, lead to a $21 million dollar fine ($4 million on the spot). It won’t of course. No police officer would be that silly. But an issue no one is really talking about is just how high these fines are going to go. With $6,600 ($1320 on the spot) per infringement, and over 30 infringements per CD sold, it could go pretty high, pretty quickly, yes?

      The Copyright Amendment Bill has made the Age newspaper again, in this story: ‘The $65,000 question: do you own an iPod?’.  Just try to ignore the fact that they’ve apparently decided I’m a man.  I guess (a) outspoken plus (b) Senior Lecturer and Associate Director necessarily means (c) male.  I’ll try not to get a complex…

      Slashdot also has a story, although the thread there, as usual when law is discussed, is full of misunderstandings and inaccuracies.

      Hat tip to Michael Napthali: this – from the educational show ‘Behind the News’ – is what kids are being taught about copyright law in Australia:

      You’ll soon be allowed to tape your favourite tv program to watch at another time. But you have to delete the recording after one use. You are not allowed to give the recording to a friend. They can come over and watch the program with you, but they can’t take it home.

      With MP3s, you can copy your music collection from CDs and other formats to MP3 players. You can even make a compilation CD of all your favourite songs from CDs you own, as long as you put them on a different format, like MP3. But you’re not allowed to share your compilation with a friend, although they can listen to it with you.

      The laws are designed to crack down on people who make profit from piracy.’

      L.O.L. It’s mostly accurate (the ‘watch once’ condition I don’t think is there). But do you think that this will make any sense at all to kids?

      Alex Steel, a Senior Lecturer in the Faculty of Law at the University of New South Wales, specialising in criminal law (he made a submission to the Senate Committee too) has alerted me to this report (beware, big pdf) of the NSW Ombudsman, called On the Spot Justice? the Trial of Criminal Infringement Notices by NSW Police. It’s a report of a review done of a trial using Criminal Infringement Notices in several areas in NSW.  Maybe something similar should be done when the copyright system is introduced? (more…)

      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. (more…)

      The New York Times is carrying a story about an artist who is being sued by the University of Alabama. His wrongdoing? Selling paintings of football matches that include players wearing the university’s “famous crimson and white color scheme”.

      According to the article, the suit is a trade mark action, and it is not someone’s idea of a joke. The artist, Daniel Moore, has been painting football pictures for over 25 years, and says he paints using photographs for reference, but adds his own interpretation and style to them. The accompanying photos suggest that Moore does have an ultra-realistic style. The lawsuit alleges that Moore’s paintings are effectively facsimile images of a football ‘play’ and “adds no message whatever not conveyed by the play itself”. (more…)

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