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Last year’s review of copyright exceptions in Australian law was colloquially known as the iPod Inquiry. The Attorney-General, in announcing the review originally, specifically referred to iPods, stating that:

‘Many Australians believe quite reasonably they should be able to record a television program or format-shift music from their own CD to an iPod or MP3 player without infringing copyright law. However, this issue needs careful consideration’

There were, of course, plenty of us pointing out the issue that iPod use constituted copyright infringement under Australian law – and that, while it was highly unlikely anyone would be sued for using an iPod, still, Australian representatives of copyright owners like ARIA were taking a more hardline approach in affirming this was infringement, at least in their public statements, than organisations, like RIAA, overseas. There were news stories like this one in the general lead up to the inquiry.

Then in May, when the Australian government announced the reforms it would be making, there was this claim in the media release:

‘The changes will, for the first time… [l]egalise ‘format shifting’ of material such as music, newspapers, books – meaning people can put their CD collection onto IPods or MP3 players.

At first glance, it seems that the Exposure Draft has delivered: after all, if you look at the explanatory material that accompanies the Exposure Draft now released for comment, you will see that an exception (which I’ve discussed in more detail here) has been created to allow:

‘…the owner of certain articles embodying copyright material to make a reproduction in a different form. This may be desirable so that the owner can take advantage of newer technolgoy (dubbing a VHS tape to DVD) or to use the copyright material in a differetn place (copying music to a portable MP3 player)’

Unfortunately – several commentators to my blog – and a commentator on a recent post by Patry have pointed out – it would appear that the exception has been too narrowly drafted actually to allow people legally to use their iPods. If the law is enacted in its current form, we will have to call it the little iPod Inquiry that couldn’t.

Why is that? Well, under the format-shifting exception in the Exposure Draft, if you own an article, embodying a copyright work, you can make a ‘main copy’, and that ‘main copy’ is not an infringement if you fulfil certain conditions:

• you own the original article embodying the copyright work (that is, you own the CD and didn’t borrow it from someone, and it’s not an infringing copy like a pirate CD or a CD of music downloaded from Kazaa);
• the main copy is for your private and domestic use;
• the main copy is in a different format from the format in which the sounds are embodied in the article;
• any further ‘main copy’ made from the original is in another different format (that is, you can only make ONE ‘main copy’ in any given format);
• you don’t make more copies from the main copy; and
• you don’t engage in commercial dealings or dispose of the main copy or the original.

You are allowed, under the exception, to make ‘temporary copies’ which are incidentally made as a necessary part of the technical process of making your main copy – but you have to DESTROY those at the ‘first practicable time during or after the making of the main copy’.

Now, if you are familiar with iPods, chances are you have already spotted the problem here. iPods require you to make two copies, and you have to keep both for your iPod to work. iPods purchased from Apple come with software, called iTunes. According to my informants:

1. in order to shift music from a CD to an iPod, you put your CD into the computer, and iTunes asks if you want to make a copy;
2. music from the CD is copied to the computer hard drive as MP3 files;
3. these MP3 files can then be ‘shifted to’ the iPod so you can carry it around.

Now, this would be OK: if we assume that the copy on the iPod is the ‘main copy’, then the copy on the hard drive is incidental and necessary. But here’s the kicker. It’s not temporary. In fact, you can’t ‘destroy it at the first practicable time’. According to the comment received from one reader:

‘Deleting the file from your computer will result in the song being deleted from your iPod next time it’s plugged in.’

It gets better. According to the same reader,

‘iTunes 7 now includes a feature which allows you to automatically synchronise an iPod with more than one computer (with the same iTunes account) – this would presumably result in additional infringing copies being made on your second computer when the iPod is plugged in.’

OK, well, maybe you could say that we have two ‘main copies’ – one on the computer hard drive, and one on the iPod. But no, that won’t work, ‘main copies’ have to be made from original articles, not other main copies (the idea being to prevent serial copying). And of course this problem isn’t dealt with by licensing – licensing allows all the copies you make from songs purchased from the Apple iTunes store – but not copies you make from your CD collection.

The commentatory on Patry’s blog has another interesting point here. I’ll quote:

‘it confuses two parts of format, mixing coding with medium. MP3, Apple’s AAC, and WAV are codings. They are representations of audio data. Plain-text, HTML, and Word Doc are codings also. CDs, Hard Disc Drives, and paper are media. I can put a work in most codings on most media—though some are more efficient than others. It does little good to print an MP3 on paper.

It also does little good to print a Word Doc on paper—I have to use the Word program to translate from that coding to a coding understood by the printer, then transmit that. The coding on the paper is Formatted English Text, more or less.

Sometimes we pair a coding with a medium and call it a format. One such pairing is CDDA, Compact Disc Digital Audio. That’s a WAV file on a CD, more or less. We might consider MP3-on-iPod to be a format also. But it sounds like they’re considering all MP3s to be one format.

So what happens when I copy a song from a CD or tape to my iPod? First it’s raw audio on a CD. I use a program to rip that, copying the raw audio into my computer. Then I use a new program to copy that, shifting the coding from raw-audio to MP3. Now I run a new program to copy this MP3 to my iPod. At the end, the MP3 on the hard drive and the MP3 on the iPod persist. Apple’s iTunes program manages all these three copyings and the coding shifts, but they’re there.’

What this comment raises is a fairly basic question: what is a format, exactly? Is a WAV file a different ‘format’ from an MP3 file? Do we identify a different ‘format’ from the different file extension at the end? Or are all digital formats different? I’m not sure I agree with the commentator on Patry’s blog – I think there is an understanding of the term ‘format’ that looks at different ‘codings’ and considers them different ‘formats’ (see, eg, the Wikipedia entry on ‘file formats’), but it’s not exactly clear just what counts as a format.

Now, no doubt plenty of people have already pointed all these issues out to the Attorney-General’s Department. Maybe the drafting has already been fixed, before it goes to the Senate. Or maybe not – maybe this will be kept in the current draft (dangerous, because the Senate Committee could get so stuck on this silly issue that they bypass the many other issues with the Exposure Drafts, that I’ve pointed out in previous posts). Surely, it cannot be the case that the Explanatory Material will refer to MP3 players, and put forward draft legislation that won’t work for an MP3 player which, by all accounts, dominates the market (over 70% market share, I understand).

Even if this gets fixed, there are some lessons to be learned from this drafting debacle. William Patry commented that

‘part of the interest in the Australian endeavor [is that] most of our [US] rules (say fair use) were formulated at least in a general way long before the Internet and we have therefore been trying to update them in a common law way, i.e. by court cases. The Australians are doing it legislatively, where views beyond those just of litigants can be heard’

That is the strength of doing these things legislatively, no doubt. However, the fact that the legislation drafted doesn’t, even now, actually work to cover common technologies used to do the things aimed at reveals the problem: because so many views are being heard, we are ending up with highly qualified, detailed, legislative language – which is so specific, that it fails to work. If it doesn’t work on current technology, it won’t work in the future, either. In an attempt to get certainty, what we have instead is technology specific, useless exceptions.

What the government should have tried to do is something that commentators like Robert Burrell and others were suggesting at the time of the inquiry. By all means, avoid fair use. But try also to avoid writing such specific exceptions that they work only for today’s technology. Write exceptions with some open textured language.

A final lesson is that it appears the people in the Copyright Law Branch who drafted this legislation do not have iPods. I guess we should have given them MP3 players at the outset, so they could get used to the technology they were drafting for.