All jurisdictions

A report into Freedom of Information Laws and (media) free speech in Australia, commissioned by the Right to Know Coalition, has been released. Called the Report of the Independent Audit into the State of Free Speech in Australia, you can download it here (beware: big (336 page) pdf).

The media are breathlessly reporting that ‘more than 500 separate legal provisions in 335 different state and federal acts of Parliament are denying Australians access to a vast amount of information they should be able to see’. Numbers aside, I’ll be interested to see what kinds of information are limited, what grounds can be used to limit availability of information, and how the procedures for getting information are set up (are they complicated? simple?).

Obviously, I’ve not read it yet. Maybe more commentary when I have.

The other day I mentioned the government’s Discussion Paper reviewing the Legal Deposit Scheme. Michael Geist has pointed out to me that related debates – in particular about the relationship between legal deposit and TPMs – have occurred in Canada. So, for your further edification:

  1. Michael Geist’s column on the issue;
  2. The regulations
  3. The LAC Guidelines

With no fanfare (and I mean no fanfare: no press release at all; I found out via the Australian Copyright Council website), the Attorney-General’s Department and the Department of Communications, Information Technology and the Arts have issued a Discussion Paper on the Extension of Legal Deposit in Australia to include audio-visual materials and electronic materials.

The submission date is 11 January 2008, and the Discussion Paper is available from both the DCITA and AG’s websites.

The Legal Deposit scheme requires Australian publishers of ‘library material’ (all paper-based publications – books, sheet music, periodicals, pamphlets) to deposit copies of that material with the National Library of Australia. It doesn’t require deposit of films, sound recordings, or other materials in electronic form, including web material or e-books. (although the penalty – all of $100 – for failure to comply isn’t all that scary).

The purpose is to develop a public collection of published material, so as to preserve national heritage and provide access for research purposes. This stuff is actually quite important (particularly for people like me, but also from a policy perspective).

But of course legal deposit does become trickier when you move to electronic materials. Do we want to preserve every website? Really? Even the teenager’s blog? When? (websites change!) Maybe instead we should go for representative samples? If so, how do we judge what is ‘representative’? And how do you make stuff accessible? If it is preserved electronically, should it be made available online? To whom? On what basis? If you are a public institution responsible for this, do you depend on commercial products to continue their commercial way, and try to fill the gaps? What if the commercial publisher stops providing a service? Really, really interesting questions.

For convenience, a full list of the questions in the review is reproduced over the fold. (more…)

Apropos of a recent post, the latest edition of the Internet Law Bulletin, has an article (or perhaps, more accurately, MIPI Press Release) by Sabine Heindl (General Manager, MIPI) on the issue of suing individuals for downloading or uploading music, and MIPI’s efforts to have ISPs engage in ‘notice and disconnection’ activities. It really doesn’t add anything to the material I explored in my last post, although this paragraph highlights a fact well known to people like me or Alex Malik, perhaps less well known to the general population:

‘The Australian music industry is now in a position to notify ISPs of the IP addresses of copyright infringers, namely those making available copyright-protected music for download on their networks.’

Yes, that’s right. They can see you.

The article pushes the same line we’ve seen in the materials highlighted in my previous post: ‘ISPs should disconnect users’ when they are repeat offenders. What the article doesn’t do is answer all those questions that we still have about any such proposal: (more…)

I’ve become more interested in copyright bureaucracies, and patent and trade mark offices: how they operate; how transparent they are; who they are; how powers are divided between them; how they interact; how they characterise their role, their ‘customers’, and their ‘stakeholders’. How we make them accountable for the decisions they make – or how we fail to do so. Regular readers may have noticed this flavour seeping into some of my more recent posts and papers.

Today, my little obsession is the growth of cooperation between Patent Offices around the world. While there’s long been cooperation (Trilateral Cooperation, for example, between the US, Japan and Europe was set up as early as 1983) I’ve been detecting an increase in the number of press releases in this area, and the number of mooted pilots and activities. So, being the obsessive that I am, I thought I’d collect together what’s been going on – at least as published, that I can find – and offer a few thoughts and questions that these developments raise. (more…)

Here’s the latest activity regarding communications related national security legislation brought to you courtesy of the Senate Bills List dated 15 October…


I read in the SMH that Premier Iemma is planning to reform the law to allow police to issue on-the-spot fines for minor criminal offences such as shoplifting, offensive language and minor fraud.

Can I just say that I think this is a really interesting, as well as a potentially troubling, development. I’m not aware of other situations in which conduct we might consider ‘truly criminal’, albeit only in a minor way, has been the subject of on the spot fines. And it seems to me that this approach, while having all the attraction of ‘efficiency’ in the allocation of policing forces, runs the serious risk of muddying the civil-criminal waters in undesirable ways. (more…)

Australia’s Patent Office, known as IP Australia, has launched its “Strategic Statement” for the period 2007-2012. Like all these things, it’s a bit boring and all motherhood-statement-y – as, indeed, one would expect.

But a couple of things about the Strategic Statement are notable. In particular, it explicitly states its ‘vision’: basically, it sees itself as a branch office, competing for business and trying to make its services more attractive to ‘customers’. But that raises some really interesting issues. Just think about the kind of business IP Australia is ‘competing’ in. On one view, it’s ‘competing’ in the business of granting monopolies. Can anyone see a problem? (more…)

The case we all thought ended two years ago (Grokster, on the liability of the providers of the file-sharing software) continues at lower levels, with an interesting judgment on final orders, discussed by Ed Felten, and Jason Schultz (part 1, part 2).

Big issue in the case: what kind of injunction to order. Do you order the defendant to stop all infringements using their software? Some? who decides whether the system is ‘good enough’? Clearly, the court has struggled with this issue. It decided on an order that required steps to reduce infringement, but not 100% effectiveness.

This is all sounding very, very familiar. Kazaa redux, methinks.

On the weekend, news that Trade Minister Warren Truss announced that Australia would join, as a third party, the dispute resolution brought in the WTO by the United States against China relating to enforcement of intellectual property rights.

[Update: apparently the Labor party (or at least Simon Crean) approves this decision, labelling it a ‘tentative’ step in the right direction.]

Hmmmm. Do you think this (a) a silly move; (b) a considered and sensible way to protect Australia’s interests; (c) another example of Australia doing its ‘me too’ act with the US on intellectual property law regardless of Australia’s own economic interests? Let’s have a think about this. (more…)

The Sydney Morning Herald is reporting the news that Music Industry Piracy Investigations (MIPI), the music industry’s copyright enforcement arm, is threatening that they may have to start suing individuals for copyright infringement, if ISPs don’t do what they wish, and ‘exert more control over their users’. but is this news? And is it likely? I don’t think so. But to explain why, we need some backstory.

[UPDATE]: Today’s AFR has more on MIPI’s proposals for ISP monitoring of copyright infringement: see page 40] (more…)

Regular readers would be aware that last year I took a bit of a stand on the introduction, in Australian copyright law, of an infringement scheme – that is, on the spot fines for acts of criminal copyright infringement as an alternative to prosecution (see here for the links to all my past posts).

The Attorney-General’s Department produced, earlier this year, Draft Guidelines on the operation of the scheme. The comments period on that draft has now closed, but I thought I would just note that my submission is available from my bepress site, here. For another view, see Alex Malik, here. I looked for, but could not locate, other submissions.

[UPDATE: The Cyberspace Law and Policy Centre have made a submission, available here. EFA have also made one, available here. More if I happen to find them]

Further to my previous posts, the Telecommunications (Interception and Access) Amendment Bill 2007 was passed by the Senate on 20 September 2007. It went through without a definition of ‘telecommunications data’. The Democrats and the Greens expressed their concerns about the bill generally and its impact on privacy and the vagueness of the term ‘telecommunications data’ but their suggested amendments were negatived. See Natasha Stott-Despoja’s speech and Kerry Nettle’s speech for details.

The Communications Legislation Amendment (Crime or Terrorism Related Internet Content) Bill 2007 was introduced into the Senate at the beginning of this week. Senator Eric Abetz had this to say in his Second Reading Speech:

“The Government’s recent review of the E-Security National Agenda found that the e-security landscape has changed significantly with the emergence of sophisticated, targeted and malicious online attacks. Many of these attacks are associated with websites used by criminals to perpetrate fraud or circulate malicious software.

This Bill proposes to amend the Broadcasting Services Act 1992 to expand the black list of Internet addresses (URLs) that is currently maintained by the Australian Communications and Media Authority (ACMA) to include crime and terrorism related websites hosted domestically and overseas. Black listing cyber crime and terrorism websites is part of the Government’s comprehensive NetAlert – Protecting Australian Families Online initiative.”

The Australian Law Reform Commission (ALRC) has published Discussion Paper 72, asking for feedback on “301 proposals for overhauling Australia’s complex and costly privacy laws and practices”.

As stated in the ALRC’s media release, key proposals arising from the public consultation process undertaken to date include the following:

–simplifying the current regulatory scheme for privacy law;
–providing for the protection of personal information stored or processed overseas;
–introducing a new system of data breach notification to individuals;
–introducing a new statutory cause of action where an individual’s reasonable expectation of privacy has been breached;
–abolishing the fee for unlisted telephone numbers;
–expanding the enforcement powers of the Privacy Commissioner;
–imposing civil penalties for serious breaches of the Privacy Act; and
–introducing a more comprehensive system of credit reporting.

Submissions in response to the discussion paper are due by 7 December 2007. The ALRC plans to release a final report and recommendations in March 2008.

I have not been able to review the ALRC’s proposals in depth, but they appear to be responding to the considerably complex nature of Australian privacy laws (which are addressed at the federal and state levels, sometimes with separate treatment for medical records), as well as attempting to bring current privacy principles in line with current information technology and its implications.

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