LawFont.com

But wait, said the guy with the BeDazzler – there’s more!

I happened to be prowling around the Bills Net site today, looking for something, and lo and behold, I found the amendments the government proposed to the Copyright Amendment Bill. And you know what? In addition to the 12 pages of amendments I’ve previously discussed (initially here, then in amended FAQs here), I find there’s another 3 pages – introduced on 30 November (the other set were dated 28 November). Hmmm……

Anyway, so there is more than I thought.

And what do they do? Well, in fact, they get rid of more of the strict liability offences. And they make a few other changes: to the timeshifting provisions, and some other things. Details over the fold.

First, the strict liability offences. What other ones (in addition to those I discussed before) have they got rid of?

1. section 132AI(8) – distributing an article to an extent that affects prejudicially the owner of copyright (the ‘I put it online’ offence)
2. section 132AO(5)(a)(i) – causing a sound recording to be heard in a place of public entertainment (the ‘I played my CD player too loud’ offence);
3. section 248PC(5) – communicating a performance to the public (the ‘I recorded U2 and then put the recording on my MySpace site’ offence);
4. section 248PD(5) – causing a recording of a performance to be heard/seen in public (the ‘I recorded U2 then played that recording to my friends in the Botanic Gardens’ offence);
5. section 248PJ(8) and section 248QE(8) – distributing a recording of a performance to an extent that will affect prejudicially the financial interests of the performer (the ‘I recorded U2 and put it on my MySpace site’ offence mark 2)
6. section 248PK(5) and section 248QF(5)(iv) – possessing or importing a recording of a performance for the purpose of distributing to an extent that prejudicially affects the financial interests of the performer (the ‘I have a mobile phone recording of U2 that I might put on my MySpace site’ offence.

These further amendments are, in my view, highly significant. One of my abiding criticisms of the Bill has been that by keeping in the strict liability offences those where a person’s actions ‘prejudicially affect a copyright owner’, the Bill was (a) uncertain in application and (b) meaner than the US where to be a criminal you have to distribute copies worth $1,000+ (retail) before you’re nailed with criminal liability. Such provisions, in the original Bill, did have significant potential to catch, at least on the face of the law, some pretty ordinary actions by consumers, and in the absence of guidance, gave considerable discretion to police officers.

So I have to congratulate the government for listening on these provisions. This is a significant step.

Being a critic generally I can’t help but point out that these are changes all aimed at helping consumers. Small businesses that deal with, but don’t sell, copyright material, and who aren’t dealing with counterfeit goods, still run risks under the legislation. That is because various provisions that make it criminal to make copies ‘for commercial advantage’ remain – these catch you whether you are selling or not, so could catch the ‘extra-license’ copies I talked about with my colleague Jeremy Gans in the past.

Nevertheless, when you take these omissions from the criminal provisions, and add them to the other omissions I already discussed, most of the provisions dangerous to consumers appear to have gone away. And that is a very good thing.

These additional changes make some of the comments I made, quoted in this Sydney Morning Herald article, inaccurate as a description of the Bill as amended by the government and as passed by the Senate on 1 December. Now, I wasn’t at all happy with that article in the first place – it completely distorts the tone of the conversation I had with the journalist, who chose to ignore most of what I said, including a number of the areas where I praised what the government had done. So it goes when you deal with journalists.

However, in relation to whether the comments she did quote were accurate, I can quite staunchly say that they were accurate at the time I made them – when I was interviewed, via mobile, at midday on Wednesday, 29 November. At that time, only the first set of amendments were publicly available. If they were not accurate the next day, regarding the Bill as passed – well, that’s the fault of the government, not me, for releasing them piecemeal. These amendments went onto the Bills Net website no earlier than 30 November.

What else?

In addition, the further government amendments:

1. allow not only for Infringement Notices, but also forfeiture as an alternative to prosecution. That is, if you give up all your alleged infringing copies, and any devices used to make them, you can avoid prosecution. That’s not a bad idea, really. Although I have some interesting visions of police seizing laptops and things like that…
2. No longer require you to tape for timeshifting at home – they’ve removed the requirement that a recording be made ‘in domestic premises’
3. adds a requirement that the government review 2 of the format-shifting exceptions – namely the photographs one, and the films one – in March 2008. The government is not required to review the operation of all these amendments in March 2008, as some stories this morning seemed to suggest.
4. changes the changes to section 28 – pretty technical stuff.