November 2006

Just a quick note to say that on Monday, at lunch time (12:45-2pm), UNSW and the Australian Consumers’ Association are hosting the famous Jamie Love (cptech) at UNSW. I’ll be there as an Australian voice/commentator.

Title: ‘The new “Protectionism”: Can copyright Technological Protection Measures deliver a fair result for the new digital consumer and producer?’
Date: Monday 13 November 2006
Time: 12:45-2pm
Venue: UNSW Law Faculty (the new one on lower campus) theatre G02

James Love is the Director of the Consumer Project on Technology, an international consumer advocacy organisation with offices in Washington, London and Geneva. It focuses on ‘issues concerning the production of and access to knowledge, including medical inventions, information and cultural goods, and other knowledge goods’. Kim Weatherall is an intellectual property academic from the IP Research Institute of Australia.
Issues will include:
* Can or will the current and longstanding practises of artists, writers, musicians, students, video content producers, teachers and others to quote from, re-use, parody, ‘snip’, borrow and re-mix from earlier works be reflected properly in those TPM systems and laws?
* Can or will consumers’ (and producers’) entitlements to the benefit of laws about “Fair Dealing” or “Fair Use” in Australia, the US or elsewhere be reflected properly in both TPM systems (such as the new DVD copy protection scheme) and laws surrounding copyright and TPMs?
* Should the buyers of new computers, TVs, players and other A/V or data consumer equipment expect that the new digital standards will adequately protect their interests; or will they be worse off than they are now with existing analog and hybrid signal connections and related legal provisions?
* How can the complex legal and technical issues best be brought to the attention of those whose interests will be affected?

Entry is free. Coming from off Campus? If possible please RSVP to

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AFACT have responded to my supplementary submission to the Senate Legal and Constitutional Affairs Committee, which I blogged about yesterday. I would have noted this earlier but I didn’t know it was there – sorry!

If you are interested in the criminal issues, you should read AFACT’s response, because it does assist to identify the situations which AFACT are most concerned about, and where they are most keen for the laws to be enforced.

Reading their response made me deeply regretful of three things:

  1. I regret that my comments have been perceived as scare-mongering. It has not been my intention to ‘scare-monger’ at any point. I have sought to highlight, through example, the breadth of the laws as drafted. I stand by the view that they are unjustifiably broad, particularly given an international legal standard which says that criminal law should apply to ‘wilful copyright infringement on a commercial scale’. I do not believe, nor does the AFACT response suggest, that any of the scenarios that I have outlined inaccurately represent how the law applies on its face.
  2. I regret that there has been no public review process over these laws. It would have helped us all a great deal if there had been a very clear Issues Paper, clearly identifying the kinds of situations intended to be caught by the laws. To some extent, we are all flailing around in the dark here because the laws were introduced with little explanation of the situations to which the laws are intended to apply, and no real discussion of those. I have asked the Department whether there is a public document that seeks to outline the situations in which the laws are anticipated to be applied, and have been told that there really isn’t one.
  3. I regret that the Guidelines have not been drafted and released at the same time as a public review of the laws. If we knew when, and how, police discretion was to be guided in the enforcement of these laws, we would have a much better idea if there were areas of real concern.

Having read AFACT’s response, I do feel that there are several matters to which I should respond. (more…)

Quick link: my supplementary submission to the Senate Legal and Constitutional Affairs Committee Inquiry on the Copyright Amendment Bill is now available online here. In the submission I argue two things:

  1. The provisions could be amended so that they did not impact on ordinary activities by individuals and businesses, while still capturing the activities that are supposed to be targeted and that cause real concern for organisations like AFACT;
  2. Groups other than copyright owner representatives must be consulted in the drafting of guidelines on the enforcement of the new criminal laws. Possible groups include representatives of the cultural and educational institutions, and (on behalf of ‘society generally’) the Law Council of Australia and perhaps the Business Council of Australia.

My basic point is this: these laws are unprecedented in the world and in Australia. We do not need to start with an all-encompassing strict liability and infringement notice scheme. What we SHOULD do is start with narrower provisions, and if they (provably) don’t work, then we broaden them so that they do. Adopting an incremental – rather than an ‘all in’ – approach would importantly reduce the costs of these new laws for ordinary people and Australian SMEs.

It may be worth pointing people who haven’t yet found it to this story on the Australian. The Australian describes a leaked, draft report coming out of a study that the Australian Institute for Criminology is doing on IP enforcement in Australia. To quote the story:

The report, intended as a confidential government briefing, casts doubt on the methodology of some industry piracy studies.

It says the manager of the recording industry’s anti-piracy arm, Music Industry Piracy Investigations, did not know how piracy estimates were calculated, as that work was done by the International Federation of Phonographic Industries in London.

Copyright owners often use street-value estimates to calculate losses, but this assumes that every person who bought pirated goods would otherwise have paid for a legitimate item, the report notes.


Many copyright holders claimed links between piracy and organised crime, but AIC researcher had found nothing to support that view.

“Either there is no evidence of any links between piracy and organised crime or it is simply beyond the capacity of rights holders to identify these links,” he wrote, adding that he was concerned about the way piracy figures were being used.

“It is inappropriate for courts and policy makers to accept at face value currently unsubstantiated statistics.

“Either these statistics must be withdrawn or the purveyors of these statistics must supply valid and transparent substantiation.”

Now, let me note three things:

  1. the report is a draft, it is leaked, and is still being reviewed
  2. I do not underestimate the importance of the issue of piracy to the film industry and others – physical piracy at markets in Australia is substantial. It is very, very easy to find a cheap pirated version of a film, game or software here.
  3. I have no problem at all with enforcement against such actors who contribute nothing at all to culture or entertainment in Australia.

But I think that this report DOES highlight something important: it is not appropriate to just jump in, boots and all, with broad, overreaching criminal laws.

One of the points I made in the Senate Legal and Constitutional Affairs Committee on tuesday is that a significant cost of highly specific laws – and very specific and limited exceptions – is that people can’t develop or sell technologies with new and interesting features.

Point in case (via Freedom to Differ).

A couple of quick links:

  1. The Senate Committee hearing transcript from yesterday is now available here
  2. My blogging colleague and friend, Andrew Leigh, posts here on the Copyright Agency Limited submissions to the Committee. His view is evident from the title of his post: ‘Time to Cut CAL‘. Well worth a read as it makes a fairly basic point: just because CAL is arguing for strong copyright doesn’t mean that its members agree with the views being put.

Andrew Bartlett, one of the few Australian politicians to have a blog, and who was on the Senate Committee that met yesterday to talk about the Copyright Amendment Bill, has this to say:

The legislation has presented me with a bit of a dilemma. It is very complex and many groups have an interest in various parts of it. I have a responsibility to try to get across the legislation and the concerns expressed about it, but I also know the chances of my views having an impact on getting changes made to the legislaiton are fairly minimal. Given I have the major environment law changes on my plate, not to mention trying to ensure I reach as informed a decision as possible on the embryo legislation, as well as plenty of other debates running such as climate change and the water crisis, it does raise the issue of whether the balancing of my priorities would include basically letting the Copyright Bill go through to the keeper. Perhaps I should, but I find copyright issues personally fascinating, so I am keen to grab the opportunity to get a better understanding of it, even if I am unlikely to be able to get changes made at this stage.

And there we have it. When I said, on this blog, a while ago, that I thought it would be a waste of time to make submissions to the Senate given the short time to consider teh Bill (making the process, in my view, something of a farce given the complexity of the Bill), I was told by people from government that I was wrong, that my submission would be important and would be considered.

I came this close (makes small space between fingers) to not submitting. Like Senator Bartlett, I considered ‘letting this one through to the keeper’.  In the end, I submitted on two issues I considered fundamental, and within my expertise: the apparent cap on fair dealing for research, and the criminal provisions.  I suspect I should have stuck to my original intention.  Because what has happened is that the more I have looked into it, the more I have realised how seriously overbroad the criminal provisions are.  I have researched the government’s own principles on the imposition of strict liability, and found these laws wanting on many, if not most, of the criteria.  I have become more concerned, even as I have been forced to acknowledge that the government just isn’t interested in hearing it.
All I can hope is that the government sees the light on this, and makes a real effort to narrow the laws to their intended targets. It can, and should, be done.

Phillip Ruddock last night on ABC PM program on the Copyright Amendment Bill:

‘If you’ve got schools and universities on the one hand saying it doesn’t go far enough and you’ve got copyright owners on the other hand saying it goes to far, we’ve probably got it about right. ‘

Um, no. It could be because the law is really bad, makes things more confusing, and helps no one at all.

And you know what? That could be the case with the Copyright Amendment Bill 2006. This is a law that:

  1. will make many businesses around Australia criminal infringers of copyright for the inadvertent acts of employees;
  2. includes multiple changes to the law that no one understands;
  3. creates format-shifting exceptions and time-shifting exceptions that are technologically redundant before they are introduced, so highly qualified they are unworkable and completely incomprehensible to the average human being; and
  4. makes things harder for libraries, cultural institutions and archives – even as we start to see the massive benefits of access to information online.

It is a law condemned as unworkable by some of the most successful, innovative companies in the world – Apple, Google, and anyone who is anyone in open source. It is a law that far from making things fairer for consumers, makes things harder and makes them more likely to be criminals. It is a law that, for the benefit of copyright owners and the convenience of the DPP, imposes strict liability almost across the board in criminal copyright law and thus imposes significant compliance requirements on all businesses in Australia that deal with copyright material. Um, that would be, oh, every business in Australia that uses computers or publishes anything at all in any form at all.

No, Minister, you have not got a balanced law. You have a law that makes things completely unworkable for everyone. And that’s why everyone is complaining.

This Bill is due to pass soon. I back up what the EFF have said. You should be writing to your Minister on this. This Bill should not pass.

Update: In comments to this post on Weatherall’s Law, Craig points out that Google and Apple are not altruistic – they don’t like the law because it makes their business model harder.

That is an absolutely fair comment.  I suppose I’d like to make 3 responses:

  1. Yes, everyone is advocating their own interests or biases, and the working through of all that – when it is reasonable, when it is not – is part of the democratic process.  However, it is worth noting that a law that makes things hard for Google and Apple makes things hard for other companies seeking to compete in the technology and software space.  I’m not of the view that we should advantage Google and Apple to the cost of copyright owners generally.  I’m also of the view though that a law that grants very absolute rights to copyright owners isn’t the right way to go.  In this, of course, I’m backed up by any number of reviews, including this recent one from the UK.
  2. A lot of the complaints about the law are along the lines of ‘we don’t understand what this means’.  That is the sign of a badly drafted and problematic law, not a balanced one;
  3. You should take time, too, to read some of the complaints carefully.  There is excess on all sides, there always is.   But really, some of those complaints are truly amazing.  Among the arguments are these ones criticised by Andrew Leigh.  Another amazing suggestion from one organisation was that we shouldn’t have a time-shifting (tape to watch later) exception unless it was conditioned on consumers first making inquiries as to whether they could download the show for a price from online.  That is, before you press record, you should have to work out whether you could buy the show.  Imagine explaining that to consumers.  It’s almost as good as the ‘no rewind condition‘ that was mooted back in May.  Another suggestion from CAL: that because publishers now sell individual articles from journals, a student photocopying a single article from a journal should no longer be deemed a fair dealing.  If the Attorney-General thinks rejecting these extreme proposals means that the law is balanced, I must with respect disagree.  And yes, I acknowledge that there are some pretty extreme suggestions on the other side of things too.  Libraries and Educational Institutions would love to pay less for things.  The bandying about of extreme suggestions on all sides is not a good thing.  As Jane Ginsburg has pointed out, what brings copyright into disrepute is greed – greed on all sides.  But it all just underlines the point – when you have all kinds of extreme suggestions, the fact that everyone complains doesn’t mean the balance is right.

Someone at Telstra forgot to get their NextG advertisement checked by a copyright lawyer.

You may have seen the ad (it showed last night during Australian Idol, but I’ve seen it before): a good-looking girl having a great time at a live concert holds up her fabulous sexy slimline phone and records what’s going on. She sends it to her home computer, and a whole bunch of the concertgoers follow her home to continue the party at her place. Pan to fabulous large house with seriously rocking party.

What the Telstra people clearly didn’t check is that the Copyright Amendment Bill will make a whole bunch of these activities criminal, with strict liability and a $6,600 fine per offence. Let’s see: (more…)

Update: The move to a new host is completed, and I think things are working properly now. Please drop me a line at lawfont @ if not. Thanks.

Just to let our readers know: I will be moving LawFont to a new webhost over the next few days. There may be periods of downtime, and it is possible that comments on posts might fall into a black hole (but I will try to do my best to prevent this).

Other than this, the changes will be completely behind the scenes, and so the web address (still — no need to change your bookmarks), the look and feel, etc, will all be the same.

Apologies for any inconvenience caused.

You may also have noticed comments are back on after a massive spam blitz over the last couple of weeks. I am still tweaking it, but we’re again down to one or two per day.

And then I have a few further improvements planned for after that.

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