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Here are some first thoughts on the Amendments the government has proposed to its own Copyright Amendment Bill. Get the amendments here.  Get the explanatory memorandum on the amendments (supplementary EM) here.  Detailed comments over the fold, but here’s the conclusion.

With these amendments, the government has removed the most pernicious effects of the Amendment Bill (or at least, those we’ve managed to find, given the incredibly short time we had to look at it). It removes stupidities like the 10% cap on research copying, and includes an iPod exception that does cover the iPod. The key outlier here is the Criminal schedule, which is very close to being just as problematic as it originally was.

But even with these amendments, and leaving the criminal provisions to one side, the Copyright Amendment Bill is an unholy mess of qualifications, conditions, and incomprehensible drafting. It represents a lost opportunity.

Even with these amendments, this Bill fails the two basic tests the Attorney-General set himself when he started this process. This bill does not give Australians the same rights that American consumers have. And it does not ensure that consumers are treated like consumers and pirates like pirates. It treats everyone as pirates. Everyone from 14 year old wanna be stars, to Google, Apple, the creators of MySpace, YouTube or any other exciting new technology. Welcome to Australia, your own personal copyright nightmare.

Criminal provisions

The government are proposing to remove a number of the strict liability offences: namely:

1. s132AL(9) (possessing a device to be used for making infringing copies) (the ‘I own a PC and a video recorder and I’m a criminal’ offence)
2. s132AN(5) (causing a literary, dramatic or musical work to be performed in public at a place of public entertainment) (the ‘we sang popular songs too loud at the restaurant’ offence)
3. s248PA(5) (making a direct recording of a performance without consent of the performer) (the ‘mobile recordings at the U2 concert offence)
4. s248PE(6) and s248QB(6) (possessing equipment to make or copy an unauthorised recording) (the other ‘I own a mobile phone/mp3 recorder/PC’ offences)

And on the criminal provisions, that’s it folks. Yes, despite the rising chorus of concern about the criminal provisions; despite the complete absence of any serious consultation process prior to these laws being released, they’ve done only a token amount to assuage people’s concerns here. They’ve removed the provisions that people were carrying on about the most – the ones that most directly affected ordinary consumers.

But there are a number of these provisions that catch the 14 year olds, that they’ve not dealt with. Most obviously, the ‘distributing material online to an extent that prejudices a copyright owner’ is still a strict liability offence. That’s the provision that catches the 14 year old lip-synching to a song. This provision, alone, makes our criminal law significantly harsher than US law, since in the US, you have to at least distribute $1,000 retail value worth of infringing copies before you get pinged under criminal law.

Notably, too, they’ve been a little inconsistent. They haven’t excluded from strict liability causing a film to be seen, or a sound recording, to be heard in public at a place of public entertainment. Playing your radio too loud, or showing the kiddies a film on a wet day at school camp is still a criminal offence, and still something you could get pinged with an Infringement Notice for (apparently, playing your radio too loud is more evil than singing songs too loud).

And, of course, they still haven’t told us what they intend to do with multiple offences. What happens when I copy and sell a CD, and that constitutes 33 offences? Can I be pinged with 33 Infringement Notices? Are they ever going to tell us what they are planning to do about this kind of potential overkill?

Copyright Exceptions: The private use (timeshifting, formatshifting, iPod) exceptions

Here, they’ve done two key things. First, they’ve”clarified” (ha ha ha) that “private and domestic use” “means private and domestic use on or off domestic premises”. Great. I suppose it prevents someone arguing you can only use your iPod at home. But it does sound like such a nonsense, on the face of it. So what does domestic mean again? Good luck working it out.

Second, they’ve also re-written the iPod exception. Now the conditions of making a ‘format-shift’ copy of a sound recording are:

1. you have to own a copy of the sound recording (‘earlier copy’)
2. you make a format-shift copy (the ‘later copy’) using the ‘earlier copy’
3. the sole purpose of your format shift ‘later’ copy is for the owner’s “private and domestic use of the later copy” with a device that you (a) own and (b) is a device that can be used to cause sound recordings to be heard and
4. your earlier copy is not an infringing copy or downloaded from a webcast.

OK, so we’ve lost the main conditions that made the original exception unworkable for iPods, as I previously discussed. You are no longer restricted to a single copy in any given format. You can make a copy for use on a device that you own. So if you own 2 iPods and a PC, and you have copies on each, it seems that this exception now allows you to do that. This is a good thing.
It should be noted that there’s still lots of cool features of new technology that you won’t be able to use. Want to use your iPod with an iTrip? Probably not, if you’re minicasting to a bunch of strangers. Want to use a Zune feature to ‘beam’ a copy? Nope, that will still be an infringement.

The exception sticks to the original premise: we want to make certain, ordinary acts ok, so consumers aren’t pirates, but we won’t write a forward-looking exception that will allow new, exciting forms of technology. Although, of course, consumers are STILL pirates because of a whole bunch of the criminal provisions that haven’t been amended. But at least keeping a copy on your PC, and one on your iPod won’t make you a pirate. Lovely.

Regardless, the copyright owners won’t be happy with this one. Ordinary consumers, making multiple copies of stuff they’ve bought to use on different devices??? Sacrilege. Heresy. Quite contrary to the gods of copyright….

[Update: a reader (thanks David!) points out a potential issue:

I’m still not convinced that the amended iPod exemption (format shifting) works for iPods. It still requires the “later” copy to be made “using” the “earlier” copy, which arguably does not take into account the intermediate step of copying into iTunes and then out again.

I can see David’s point here. In response, it could be argued that the terminology ‘using the earlier copy’ is broad enough to encompass copying that comes originally from a legitimately purchased/owned copy like a CD. Particularly given that any uncertainties may be resolved by reference to the government’s obvious desire to allow iPod use (or mp3 player use). However, on the contrary side, it could be pointed out:

1. What happens when you make a copy onto your PC, then copy to the iPod. then a year later, your iPod gets wiped or you buy a new one. this time, you still copy from the PC copy you still have from 12 months earlier. Can you still say that you are ‘using’ the earlier, owned copy, when the PC copy was made 12 months ago? Hmmm…..
2. What the new s109A does not have the ‘incidental copying’ allowance that the other ‘private format-shifting copies’ have (a subsection saying incidental copies should be ignored). That’s kind of interesting. It’s not like they’ve removed it from theother format-shifting exception, so why the difference here? Can anyone explain?.

Interesting. I’m not sure about this one.]

[Update 2: the Supplementary EM seems to suggest this won’t be a problem; that the PC copy can be an ‘earlier copy’.  That would remove both the numbered issues above.]

Parody and satire

Yippeee!!!! something I can say something nice about. They’ve taken parody and satire out of section 200AB (and all its uncertainties over the three step test etc) and created an exception for fair dealing for parody and satire. YAY! The new exception reads:

A fair dealing with a literary, dramatic, musical or artistic work, or with an adaptation of a literary, dramatic or musical work, does not constitute an infringement of the copyright in the work if it is for the purpose of parody or satire.

YAY!

The s200AB ‘certain purposes’ exception and the three step test

They’ve done a couple of sensible things here: they’ve omitted one of the two bits they added to the three step test that made the Australian Act harsher than international law. In particular, you have to negatively impact the interests of the copyright owner, not just a licensee. They’ve also made clear that ‘cost recovery’ is not a ‘commercial advantage’.

Nevertheless, they’ve kept the condition that something won’t fall within s200AB if it is done ‘partly for the purpose of the body obtaining a commercial advantage [or profit]’. This is an additional condition that many users criticised as adding conditions on the operation of the exception. It may also exclude universities and private schools from taking advantage of the exception at all, and excludes many activities of cultural institutions. That’s a shame.

Fair dealing for research or study

They’ve amended the changes to section 40 (fair dealing for the purpose of research or study), that I’ve ranted about before. It seems, now, that it will no longer be the case that there is an absolute 10% limit on fair dealing for research or study: now, it just provides (almost as it did before) that you can have a ‘deemed’ fair dealing which is less than 10% or a chapter of a book. That’s good news. Although I remain of the view that they should have just left section 40 alone. It was reasonably clear before, and now it is just that little bit harder to understand, in my view. Frankly, the new draft section 40(5) is pretty incomprehensible although I think we get what it means.

Preservation copying, caching by educational institutions and Copyright Tribunal

Whole lot of changes here, that I don’t really understand. Can anyone enlighten me? Should we be liking or not liking these amendments?

TPMs

Not many changes here, I’m afraid. Basically, they’ve just corrected the really obvious drafting error on the interoperability exception. I’ll have to give some thought to the way they’ve done it. I’m not entirely convinced that their new condition is going to allow proper interoperability, although as I said, it will need thought.

All those other recommendations of the Senate Standing Committee in relation to the TPM bit of the Act have been ignored. The link to infringement is gone (as we knew it would be).

Conclusions/upshot

This is a patch-up job. It addresses the issues that people were yelling most loudly about without addressing the underlying issue: that this Bill significantly increases the strength of copyright rights while giving very little either to consumers, or to the technology innovators of tomorrow.