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Today, at a (invitation only) conference in Sydney, Australia’s Attorney-General Robert McClelland announced Australia’s copyright reform agenda for the next little while. I wasn’t there, but a transcript of the speech is here. In short, the agenda is this:

1. On the issues in iinet, the AG believes that ‘an industry dialogue on this issue is the most productive way forward’. Apparently ‘The Government will look closely at the outcomes of any industry discussions’.
2. On Australia’s Safe Harbours, the AG ‘to consult on proposals to adopt a broader definition of ‘carriage service provider’.’ to broaden the availability of these Safe Harbours. There will be a consultation paper on this soon.
3. The AG’s Department will be considering the Copyright Advisory Group’s request for an additional exception to the anti-circumvention provisions, and will ‘invite submissions seeking views on whether any other new exceptions should be included, and I again invite those affected to take this opportunity to raise their issues.’ If you want to jailbreak your iphone, or anything else for that matter, now might be the time to think about it.
4. The ALRC will likely get a reference towards the end of the year on copyright. The terms of reference will have to be written not to overlap with other work (like the convergence review) (good luck with that). At least, the ALRC is likely to look at exceptions in copyright in the context of the online environment and whether the correct balance exists’

Interesting times.

Bill Patry today has an interesting post on the politics of the current Canadian copyright reform discussion, noting, in particular, the ‘bullying’ of the ‘International’ Intellectual Property Alliance (International in the same way as World Series Baseball, by the way, as Patry points out). Bill’s final point is, I think, a good one:

The intense, negative reaction of Canadian citizens to IIPA’s efforts is well-taken. Why any government would want to adopt approaches that have been admitted to be a dismal failure in the U.S. by the law’s own ardent author, and that are not required by the WIPO treaties is a mystery.

I think what interests me about what is going on in Canada is exactly that – the ‘intense, negative reaction’. I think, in part, this kind of intense, negative reaction is, as Patry points out, because the relevant laws have not been proven to work at all. I also think the reaction happens for reasons that Michael Geist points out in his ‘Why Copyright’ talk – it’s about the effects that harsh copyright laws can have – on creativity, on fun stuff that people like to do, on free speech; it’s about the mismatch between copyright law on the one hand, and ‘the real world’ and the possibilities of technology that we can all see on the other.

It’s worth pointing out, though, that there’s a broader geopolitical context to this. In part, the ‘intense, negative reaction’ is a reaction against the high-handed, ignorant, contemptuous attitude of the US – US industry in the form of the IIPA, and the US government in the form of the USTR – an attitude that says that unless your law looks exactly like ours, it must be inadequate – oh, and by the way, we have nothing to learn from you; your laws could not possibly be as good as ours. I think that the copyright debate – because it is one in which that attitude is taken to extremes – crystallises a more general concern about the US ‘attitude’, as illustrated in its lobbying and trade negotiations and treaty negotiations – to the rest of the world. Similarly, I think that the copyright push by US industry and government has broader geopolitical costs to the US – it is feeding anti-American sentiment. A colleague and I have outlined this in excruciating detail in a recent paper, and I’m seeing the same thing happen in Canada.

On a positive side, it’s rather good to see some US companies in Canada pushing on the other side. That might help limit the damage to US interests more generally.

Update: see also Howard Knopf.

It must be Friday. All the IP stories are sports ones.

Several sites have picked up the story that the Major Baseball League is involved in a rather Major Technology Stuff-up. As Madisonian reports:

‘Apparently fans who purchased digital downloads from MLB have discovered that MLB has changed its DRM scheme. Fans who downloaded complete games from MLB had to log in through an MLB web page to verify that the download in question was being viewed on the appropriate, licensed computer. MLB has now removed this page, making those downloads unviewable. Apparently MLB does not know when the problem will be fixed. This means that those who purchased the downloads have been denied the benefits of their bargain.’

As the US sites are reporting – under US law, the fans are stuffed. Circumventing the DRM is illegal under their Copyright Act (the DMCA). And no one can sell the fans the means to access the games, because that’s illegal too.

Aren’t you proud that Australian law isn’t so silly? Here, under the Copyright Regulations 1969, we actually have a prescribed exception that allows circumvention of an access control to get access to stuff where:

(a) the technological protection measure is not operating normally; and
(b) a replacement technological protection measure is not reasonably available.

yay Australia! oh, but that’s right. STILL no one can sell you (or even provide to you for free, personally) with the means to do so. So GEEKY Australian baseball fans are ok. That must be a large group.

Oh, hang on, no. Geeky Australian baseball fans are not ok, because they might be circumventing under US law if they were to circumvent a US access control based on a US site … might depend on the technology; whether all the acts were occurring in Australia. Hmmm……

My brain hurts.

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

[Note: the TPM part of this post has been updated, 15 December 2006]

So, let’s see:

1. Australia has passed a copyright amendment bill, with lots of changes, particularly digital ones;
2. The UK has the Gowers Review Report, newly released – with various proposed changes for consideration;
3. Canada is still waiting, and … (wait for it, wait for it)
4. Now New Zealand has its own Bill! (big pdf here, text version here)

Guess those Canadians drafting their Bill will be looking at all this with interest.

But let’s have a quick squiz at the new kid on the block, the Copyright (New Technologies and Performers’ Rights) Amendment Bill 2006 (New Zealand).

So what does it do?

Well, for an international audience, it does the WIPO Copyright Treaty and WIPO Performances and Phonograms Treaty – plus some stuff on exceptions reflecting the current debate over private copying. For an Australian audience, it basically does the Digital Agenda stuff, plus a bit of stuff from some of our more recent amendments.

My summary? This law is a really strange – make that bizarre – mix of weird expansions of rights (particularly, the extension of property rights to webcasters and perhaps beyond – well beyond what the Broadcasters’ Rights Treaty will do), exceptions that won’t work (look at the format-shifting and time-shifting exceptions) – and TPM laws that look much better than anything I’ve seen anywhere else in the world.

And what happens next? Well, as far as I can see, what happens next is that Submissions are due February (late), the Parliamentary Committee (I think, the Commerce Committee) reports in June. So radically unlike us, it seems, NZ like to have time to think.

Over the fold: more detail. (more…)

Well, the final report of the Gowers Review of Intellectual Property has been released. The 140+ page report can be downloaded from here.

This is a big deal for the UK – a wholesale review of the efficiency and effectiveness of the whole UK IP system – albeit it has been easy to ignore the goings on, while we struggle locally with what is now, officially, the Australian Copyright Amendment Act 2006 (Cth). Below, a brief background, some links to the UK commentary, and some thoughts on how the recommendations stack up against/compare to what we’ve seen in the just-completed round of Australian copyright and other IP amendments. (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)

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…)

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.

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…)

It’s time, in this series of posts on the Copyright Amendment Bill, to turn back to my usual obsession: anti-circumvention law.

This is one area in the Bill has changed as compared to the Exposure Draft which I previously analysed. Some not insignificant changes have been made here, requiring some new thought. I’ve been asked what my views are on the way the Bill deals with things like region-coding and ‘the Lexmark/Skylink garage door openers/printer cartridge’ issue.

I’m afraid I have to differ somewhat with Brian Fitzgerald here. Brian has condemned the change to the law:

When the Exposure Draft of the proposed amendments was circulated three weeks ago it retained the important notion that a TPM is a device that prevents or inhibits copyright infringement. However when the legislation was introduced to parliament last week that requirement had disappeared. Now any technology used by a copyright owner “in connection with the exercise of copyright” will be protected – even if it does nothing to stop infringement.

This has enormous consequences for Australian consumers. What the High Court decided in Stevens v Sony was that copyright owners should not be able to invoke copyright law to enforce TPMs that control the “use” of lawfully acquired copyrighted material in ways that do not amount to copyright infringement. In doing so the High Court highlighted the importance of ensuring Australians have the liberty to use their legally acquired property as they wished.

In three short weeks the Stevens v Sony principle has gone from pedestal to garbage dump. The law as currently drafted will give copyright owners wide-ranging powers to restrict the use of copyright materials as they see fit.

I’m not so sure. It all depends on how the provision ends up being interpreted. Here are my summary (tentative) conclusions:

1. The law will be successful in preventing the printer cartridge/garage door opener cases, at least as we are currently seeing them.
2. The law will allow a court to make a sensible judgment about whether a TPM really is being used in connection with copyright. In doing so, an Australian court could draw on the reasoning in Stevens v Sony and the US cases on what doesn’t fall within the DMCA.
3. It is not clear how much this law will be a problem if you wish to make competing, unauthorised devices which play or render DRM-protected media formats, such as DVDs, or iTunes songs – regardless of whether your device facilitates copyright infringement or not. It might be a problem. It might not.
4. To do them credit, the government appears to have fixed a big problem I pointed out with the interoperability provisions (not claiming credit, just noting that the issue has been solved) (although there is a drafting error needing fixing).
5. This law does nothing for the person who wishes to make ‘fair dealings’ of copyright-protected and DRM-protected material. If you wish to ‘splice’ protected stuff in, even if it is a fair dealing, you will have to find unprotected formats, however you can. This last, however, was probably inevitable.
6. Particularly in relation to the latter issue, much will also depend on the attitude that the Department takes in exercising their power to make ad hoc exceptions to the access circumvention ban. If they take an approach protective of user rights, the availability of ad hoc exceptions is the potential dark horse of these laws in Australia.

Over the fold, the detail that supports these summary conclusions. As always, I’m open to being corrected on any of the conclusiosn below. (more…)

Yesterday, Engadget carried an interview with Viodentia (the guy who cracked Microsoft’s DRM). Today, it is reporting that Microsoft is now suing him for copyright infringement. He is one of 10 unidentified defendants (called “Does”, as in “John Doe”). In the lawsuit, Microsoft will seek to get discovery of documents which will allow the identification of the defendants. (more…)

Engadget has an interview with “Viodentia”, creator of software which cracks Microsoft’s Windows Media DRM (Digital Rights Management). Engadget last month confirmed that the software (FairUse4WM) will strip the protection from music files downloaded from Napster (meaning that they could continue to play the music files after their Napster subscription ended).

It’s a relatively rare interview, given that this kind of activity now opens one up to prosecution under copyright legislation. (more…)

As I said in my last post, there are two issues that people have been hassling me about. One was Lexmark. And the other one is whether the interoperability provisions are useless.

My thoughts on the interoperability exceptions? In short, the Exposure Draft is even less generous than the US law in the form of the DMCA. In the US, you get to distribute interoperating programs – in Australia, arguably, you don’t. amazing. and very much needing to be fixed, methinks. (more…)

I’ve been getting hassled by a few people to respond to a particular issue – or rather, two related issues, arising from the current Exposure Draft of Australia’s new DMCA:

1. Does the TPM Exposure Draft, as drafted, actually deal with the Lexmark/Skylink ‘issue’ (that is, does it solve the ‘TPMs used to control aftermarkets’ issue); and
2. Are the interoperability provisions actually useless, and if not – or indeed, if so – what do they mean?

These issues are of real importance in the Exposure Draft, and for many stakeholders. So let’s have a go at them, shall we? The first one we’ll have a go at is the Lexmark/Skylink issue. The next post – the more important one – deals with the interoperability issue. (more…)