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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.

Our first scenario comes from the Red Barren, aka Ben Barren. His blog is here. Here’s his hypothetical scenario:

Imagine I got a “virtual space” from Publisher or Website Provider A (could be an ISP, a content site, search engine) and received X megabytes of storage space. And then all my electronic communications – whether they be emails, text messages, standard blog posts, photo and video storage, I uploaded/backed up to that virtual file directory so I could access them anywhere from any PC with the net and edit them on the fly. Each piece of content would have an internet/web address. I would also leave the default “public” settings on this content so much of it could be viewed by public. There would be 2 more levels – one for friends, which could view certain files and communication, and another specific temporal authorisation because I was emailing/talking to someone and various content needed to be viewed on the web, privately. eg for a meeting.

So let’s assume that the copyright in some of this content – emails, photos, videos – belongs to someone else, and let’s assume, too, that it’s the kind of content that someone cares about (ie, they might actually sue). Is Red infringing liable? Is Publisher A liable?

Red: Two possible kinds of infringement: making copies of stuff, and communicating stuff to the public.

Copies: When Red uploads, he makes copies. Unless he has a license, that’s infringement unless an exception applies. The fair dealing exceptions aren’t going to apply here (presumably he’s not putting stuff up there for ‘criticism/review’; maybe some would be ‘reporting news’ but it wouldn’t be a blanket exception). Possible that some of his copies would be covered by the new format-shifting exceptions under the current Bill. That would allow him to make a single (note that: just one) copy in any given format of a book, newspaper, periodical publication, or sound recording (and an electronic copy of a photo or a videotape). It seems that he can make this copy on someone else’s server (at least, I can’t see anything in the legislation that prevents that). The copies are supposed to be only for ‘private and domestic’ use but that doesn’t have to be at home, according to the government. The exception however doesn’t cover the copies he makes/uses for work purposes. Bottom line: at least some of these copies uploaded are infringements – the ones he puts there or uses for work, the copies which are ‘second copies’ in a given format, and any born digital audio-visual material.

Putting it online: Red will infringe copyright if he makes material available to ‘the public’ (Australian law grants copyright owners the right to ‘communicate works to the public’). ‘The public’ here are basically (a) anyone he knows through work and (b) the general public. Groups of his actual friends are not ‘the public’. Bottom line: when Red sets the default to ‘public access’, and when Red uses his virtual space for work purposes/virtual meetings, then he is infringing copyright. No format-shifting exceptions apply here, and it seems, no other exceptions do either.

What’s the possible liability? Red could be sued in the civil courts for copyright infringement; possibly leading to an injunction; damages would depend on proof of harm by copyright owners. Red could also be charged with a crime. The main criminal act that we might have here is ‘commercial scale infringement prejudicing a copyright owner’ (s132AC), ‘making infringing copies commercially’ (s132AD) (for the copies he makes for work purposes), ‘distributing infringing copies’ (either commercially, or sufficient to prejudice a copyright owner) (132AI).

Publisher A: Publisher/Webhost A might also be infringing copyright.What possible infringements? Making copies (on A’s servers), communicating to the public and by authorising infringement by Red and by Red’s end users. There might be a debate about whether A is in fact ‘communicating to the public’. The law says you communicate if you are responsible for the content of the communication. You would think that the content is determined by Red, not A. But it’s possible that two people might jointly communicate – so maybe A and Red are both liable. If A is an ‘innocent infringer’ (doesn’t know it is infringing) it might not be liable for damages – but might end up with an injunction against it. Temporary and incidental copies aren’t infringements, and acting as a mere carrier isn’t an infringement under Australian law. But hosting goes beyond this: A holds on to copies, can control its communications. The most significant danger for A is that A is authorising infringement. Whether A is authorising depends on a whole lot of things: how much power A had to prevent infringements, what steps they took to prevent infringement, whether they are financially benefiting from infringement (eg, do they put ads on the virtual space?), evidence of their attitude and whether they ‘encourage’ people to infringe. It’s case by case (yes, this is law. It’s grey, ok?). Bottom line: depending on all the facts, A runs the risk of infringing here. A might have to take some fairly draconian steps, like taking down material, booting infringers off, active policing, use of whatever technology is available to prevent infringement. This becomes more necessary the more successful A becomes.

Are there defences for A here? Since A’s greatest danger is that A is authorising, A needs to take steps to ensure that A is not authorising – ‘reasonable steps’ – like having a copyright policy, having a system for ‘takedown’ of copyright-infringing material when copyright owners send nasty letters; if technology is available to prevent infringement, using that technology. Will these be enough? Who knows? The cases aren’t particularly replete with clear guidance. In theory, too, Australia has a ‘safe harbours’ regime for webhosts and the like, just like the US does. That would usually mean that if you implemented ‘notice and takedown’ systems, you would be largely protected from liability. Unfortunately, when they wrote these laws, Australia confined the safe harbours to carraige service providers – that is, people like Telstra with CSP licenses. The government has mooted the possibility of extending the safe harbours to all ‘online service providers’ (like the US) but that hasn’t been done yet. For the moment, therefore, A doesn’t have that protection. Bottom line: A can take steps to try to protect itself, by using whatever systems it can to take down copyright material. But the rules are pretty unclear and the safe harbours don’t help.
What’s the possible liability: civil lawsuit (damages, injunction). A new provision in the latest bill makes it easier, too, to show damage – if some infringements are shown, more can be effectively assumed. Also criminal – section 132AC again, which makes it a criminal offence to engage in conduct that leads to infringements on a commercial scale, substantially prejudicing the copyright owner. The potential fines are pretty significant – over $300,000 if A is a company.

What do we learn from Red’s hypothetical? Exactly what people have been saying about these laws. The government has chosen to create narrow exceptions, hasn’t created real defences for online service providers, and has upped the ante on criminal copyright offences. The bottom line is exactly what Red opined:

It sounds serious. It is. And makes me envious of an economy like the US where they let services like YouTube, MySpace, Blogger and such grow, and only start dealing with the issues when there is a huge competitive acquisition of the startup, which brings in the lawyers who dont want competitors to have in effect an unfair advantage.

As has been said: the next YouTube, MySpace, Blogger etc won’t come from Australia, because there is no flexibility in our copyright laws, no breathing space. It should, of course, be pointed out that both YouTube, and MySpace have been sued in the US. But note that those lawsuits have come recently, after the proof of concept/momentum has been established. You might not get to that stage here in Australia.

Our second scenario comes from a reader, David Wilson, who pointed me to this story. To give you a summary:

Giant music publishing company EMI has threatened legal action against Australian sporting fans group The Fanatics. EMI says The Fanatics’ Ashes songbook breached copyright because it included altered lyrics to songs such as Go West by the Village People and Daydream Believer by The Monkees. The Daydream Believer parody included the lines: “Cheer up Michael Vaughan, How bad must it be, To a be a poor pommie whinger, And you’re watching on TV?” The group put the songbook together in a bid to get Australian fans to outsing England’s Barmy Army during this summer’s Ashes series.

All right, so now I’m in shock. Jaw drops to ground, quite literally. What kind of loser humourless company decides it is a good idea to ban a cheering songbook with fun songs for sports fans – in Australia of all countries. Is there a pom on the EMI board or something? Are they trying to give the barmy army a cheering advantage?

It raises a question, though: our Attorney-General recently promised that ‘free speech and Australia’s fine tradition of satire’ would be promoted by new laws ‘allowing our comedians and cartoonists to use copyright material for the purposes of parody or satire’. (2nd reading speech, copyright amendment bill). Would the songbook be protected?

The fabulous thing about this example, actually, is that we don’t know. According to various copyright owner groups who submitted to the Senate recently, it shouldn’t be allowed, because this is one of those cases where it isn’t strictly necessary for the Fanatics to use the copyright material to write their funny songs. They are not poking fun at the Monkees or their ouevre, but rather, at the English. It’s closer to satire than parody in other words. And the exception, because it currently uses the three step test in international law as its conditions, doesn’t cover all satires/parodies. The court would need to decide whether this kind of satire was a ‘special case’ warranting an exception. And who knows what result it would reach?

Would it be protected? All I can say is that it might should be. You’d have to hope you got a sports-mad judge.  Of course, what’s happened is that the stuff has been pulled, because the Fanatics aren’t prepared to go to court about it. But I’d be interested in other people’s views. In more practical terms, it sounds to me like a case for collective action – that is, people should take steps to pass around the words regardless – EMI might be able to sue one person, but surely they can’t sue everyone? Would they WANT to look quite that humorless?

[update: Colleague Melissa DeZwart also points out to me that surely there is a public interest exception that allows this kind of use??? :-) ]
What do we learn from this scenario? We learn that these proposed new laws are very uncertain. I’d love to hear the government’s view on this particular situation. In my view, too, we would be less uncertain if the parody exception were framed as a fair dealing exception, and not subject to the three step test. If it were, then at least we would have a familiar framework – and wouldn’t be asking the court to determine whether this was a ‘special case’ of allowable satire.

Our third scenario comes from another reader, Donna Benjamin, who has pointed me to this description on her blog, of a schools competition known as 3in6:

The idea of 3 in 6 is that teams of school kids spend 6 hours, on one day, creating a 3 minute video. There are a range of different categories to enter, and schools across the spectrum, catholic, independant and government, and across the country get involved with great joy and excitement. In the process of making that movie, kids use music they know and like.

Should entries that use copyright material be disqualified? Should the kids just be encouraged to use Copyleft, or Creative Commmons music that gives permission for such use? Should schools be able to pay a reasonable statutory licence fee to cover this sort of usage of copyright material? (as they do for photocopying) should there be a “reasonable portion” and “fair dealing” clause to provide for such usage in an educational context? Should using Creative Commons stuff be a “rule”?

This sounds like fabulous fun, and it actually reminds me of one of the stories in Lessig’s most recent book, Free Culture. In that book, he described a sort of mobile facility that enabled kids to make films – expressing themselves in audio-visual language.

My guess is that given the public nature of this activity, it wouldn’t be covered by any present exception or statutory license. One solution would be to use Creative Commons material. I seem to recall, recently, a search engine is being created that helps you find ‘sounds like’ music that is open licensed.

But another if I were the competition organisers here, I would be talking to APRA about licensing before jumping up and down too much. APRA/AMCOS do have a whole bunch of licenses which are admittedly commercial, not statutory. But maybe they could be convinced to provide a license at some kind of discounted rate, as a form of sponsorship deal? Encouraging kids to engage with the music? Before despair, why not try to sell this as a possible win-win for owners and kids? What do other people think?

What do we learn from this scenario? We learn about the effects of a specific exception regime. when you have specific exceptions, these new scenarios aren’t just maybe infringing, they definitely are. But what we could really learn is how serious copyright owners are about making licensing possible. The argument, constantly put before the Senate Committee recently, was that copyright owners and users want the same thing: for people to use copyright stuff. We also heard, repeatedly, that the answer was licenses. What I’d like to see here is for the competition organisers to ask, and for the copyright licensors to put their money where their mouth is and prove they can negotiate a reasonable license so that everyone does in fact win. Wouldn’t that be nice?