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A few quick links this morning on the Australian Copyright Amendment Bill:

You can read the debate in the Senate on the Bill yesterday (several Senators from the Committee: Ludwig, Bartlett, Lundy, McCrossin, as well as Ellison from the government side) here (beware: big pdf). (The debate is at page 23 and following, then page 67 and following).

To summarise the debate, opponents complain very bitterly about the rush of the Bill, the inadequate time to consult, the issues of criminal liability, and some other areas. Government responds saying they’ve listened to the issues, are moving amendments, have consulted adequately (and no one will change their minds anyway, so further consultation is pointless), and Australia will have, post-bill, a ‘world class’ copyright law. Senator Ludwig moved an amendment to the motion, basically decrying the rush and proposing a review of parts of the Bill.

You can also read an Op-Ed by the AG in the Tele today here, which focuses on the introduction of the parody defence. This is, of course, one area of the Bill, and the amendments, I’ve praised.

I think there is one aspect of the Senate debate that is worth commenting on. Senator Ellison commented that:

I also advise the Senate that the government has noted some of the media and other commentary on the bill, much of which, disappointingly, referred to extreme and inaccurate scenarios rather than assessing the practical effect of these reforms. I think some commentators are throwing the baby out with the bathwater, and this undermines public confidence in copyright.

Ok, just an amusing side for a minute – what is ‘public confidence in copyright‘? I mean, it’s not like talking about ‘public confidence in the police’, is it? How do you ‘trust’ a law?

To be serious, however, I think there has of course been some of this, including, no doubt, on my part (mea culpa, mea culpa, mea maxima culpa). But I do think it’s worth noting that ‘assessing the practical effects of these reforms’ has been made particularly difficult by the approach of the government to the criminal schedule.

This was the one schedule on which there wasn’t a process of public consultation. It is the one schedule that commentators only had about a month to digest. It is very broadly drafted – less so now, post amendments, than it was originally, which is of course a good thing. Experts in the field struggle with the meaning of parts of it: see my previous debate with a criminal law expert.

But most importantly, we don’t know how this Schedule will operate in practice. Not even the Federal Police are able to tell us that, let alone the Attorney’s own department. It may well be, that once guidelines on enforcement are drafted, presumably in the new year, we will all heave a big sigh of relief and wonder what the fuss was about. If they are planned to be enforced against the commercial counterfeiters of the world, then I, for one, will sigh for relief. But for the moment, we have only the official comments that have been released. And they are opaque. Let me quote again the Departmental response to questions on notice:

Question on notice:‘What is the policy intent behind imposing strict liability claues and does that mean that kids will be fined?’
Answer from AGD: ‘The strict liability provisions are not intended to target one particular group of the community and will be applied by law enforcement agencies in the normal way along with all other criminal offences.’

There is, of course, a slightly different perspective from the AG a few days later (the Attorney-General in a letter to the editor). And I’ve asked for any documents that set out how these laws were intended to be enforced, and been told there aren’t any.

Now I remain of the view – one I’ve stated repeatedly in public – that I don’t think we are going to see kids being charged or given infringement notices. It’s not going to happen, if only because it wouldn’t be good publicity for anyone. But I do have some real concerns about the breadth, which I’ve explored at more length in a previous post.
So yes, it’s a shame that the debate has become extreme. I agree with the Senator on that. But it’s also, I think, understandable.