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I’ve been paying attention recently to the TPM Exposure Draft: Australia’s new anti-circumvention laws. But of course, there were three other drafts released recently – and one of them represents the outcomes of the so-called ‘Fair Use Inquiry’ (formally, the Exposure Draft of the Copyright Amendment Bill 2006: Exceptions and other Digital Agenda Review Measures). The Bill and explanatory material are available here (it’s an interesting URL, isn’t it?).

The Exceptions and Digital Agenda Bill includes some interesting stuff:

1. Time-shifting (taping to watch later)
2. Format-shifting (making a copy in another format)
3. The rather strangely-named ‘Certain Purposes’ Exception (encompassing extra flexibility for educational institutions, libraries and archives, and parody and satire)
4. Some changes to the Digital Agenda Act reforms, changing the rules relating to communication.

My summary: As my colleague David pointed out in summarising it to our class last week, you can think of the Bill like this: the government did two things:

1. On fair use: they started out thinking about fair use and the ways in which US law might be more generous to users than Australian law. Having identified the instances where US law was more generous as a result of fair use, they sought to encode those instances in specific language. Thus we get some very limited private copying exceptions, we also get parody and satire.
2. On the other stuff: they’ve taken the opportunity to clarify/change some stuff that came up in the Digital Agenda Review – ‘clarifying’ parts of those reforms which were unclear or unhelpful.

Overall, it is that the’s a Bill that does increase the exceptions that are available. I’m really pleased to see that. i’m pleased to see consumers removed from the group of mass infringers. I’m pleased to see parody there, and some more flexibility for educational and cultural institutions.

But the Draft also has some significant issues for those interested in what David Vaver, and the Canadian Supreme Court (among others) have called users’ rights.

First, there is that awful, unreadable legislative drafting has unfortunately become characteristic of recent copyright law reforms. Frankly, it is just unbelievable just how much more unreadable the Copyright Act is becoming. The drafting is something only a Parliamentary Draftsperson could love – and even they would be hardpressed to see beauty here. The current style of multiple references back to definition sections – is particularly problematic in the Copyright Act where definitions are found all over the place and so many terms are defined.

More importantly, however, there are some nasty little surprises in there that actually further confine the exceptions we do have. If this was the balancing bill, in contradistinction to the tightening of criminal enforcement provisions and the tightening of anti-circumvention laws occurring via the other current Exposure Drafts – it’s maybe not the bargain some hoped. While the bill gives in some respects, it definitely takes away too.

Interestingly, the government has chosen to give more generously to the individual as consumer of copyright content, and take from (or give only in a Scrooge-like way) the individual as researcher or transformative user. This may be politically expedient and make a nice press release, but in policy terms, the government has it exactly backwards. More analysis over the fold.

The Private Copying (Time-shifting and Format-shifting) Exceptions

The Bill has exceptions for two kinds of private copying: time-shifting, and format-shifting.

Time shifting is of course where you that is, tape a broadcast (radio or television), at home, for their private and domestic use, to watch or listen at a more convenient time. Good to see that they didn’t persist with the ‘watch once only’ condition that had been announced back in May (see Gans on this too).

The format-shifting exception is more complicated. The idea is to allow private copying into different formats. Now, if you think about it, there are two reasons you might want to do that. you might want to format shift in order to ‘space shift’ – that is, have a private copy to carry around instead of the original hard or CD form, right? Like put it on your iPod. Or, you might want to format-shift because a format has become obsolete, and you want to move your collection to the new format (vinyl records to CDs, for example).

Which is the focus here? The explanatory material refers to both possibilities. But let’s have a look at the conditions on format shifting:

1. You can’t do just any old format-shift. You can copy from books to any other format; from photographs from electronic format to a hard copy, or from hard copy to electronic; sound recordings from CDs, tapes, records, digital downloads to any other format (not podcasts); or films: from video to electronic format.
2. You can’t make a copy from a borrowed, or pirate copy: it has to be your, legitimately purchased or owned material
3. You can copy only for your own ‘private and domestic use’
4. You can only make one copy in any given format (eg, one MP3 copy, one digital copy of a VHS film)
5. You can’t make ‘serial’ copies – ie further copies from your format-shifted copy.
6. You can’t sell, hire, etc your format-shifted copy.

Now, if this were a true ‘space-shifting’ exception, the condition that you can only make one copy in any given format is a bit awkward. As a student last week asked – does that mean if you make an MP3 copy, to put on your iPod, you can’t also keep the MP3 on your laptop? The answer would be yes. Which is kind of inconvenient, if you are the type who doesn’t always carry your iPod around, and uses their laptop as a source of music too. But if it were really a ‘obsolete formats’ exception, it’s not clear that the prevention of serial copying makes all that much sense – surely you should be able progressively to copy your collection from format to format, as they come up. And surely, of course, you would have a condition that related to obsolescence of the format in some way.

Thus the thrust of the government’s format-shifting exception is, in some ways, an uneasy compromise between these. Given the focus on iPods in the Inquiry (people were calling it the iPod inquiry, colloquially), it was important that the format-shifting exception attempt in some way to cover that activity. However, the exception can be justified in policy terms more readily on the basis of a need to shift from obsolete formats. If this exception ends up getting challenged, it will be interesting to see what the main justification put forward is – and whether it is accepted by an international tribunal, given the mix of motives apparent from the conditions imposed.

The 200AB ‘Certain Purposes’ Exception: libraries, galleries, educational institutions … and parody?

There’s another set of exceptions, in one compendious section, called the ‘certain purposes’ exception. This covers:

1. non commercial uses by libraries, archives and museums;
2. non commercial uses by educational institutions for educational instruction
3. uses for/by a person with a disability; and
4. uses for parody and satire.

Obviously, these go together, united by a common theme (cough).

Anyway, the basic structure is this. Not just any old non commercial use by a library or university, or for parody or satire will be allowed. Rather, the court is to decide whether a use, falling in these general categories, should be covered by copyright. How does a court decide that? By looking at 4 conditions in the new s200AB. A use is allowed if:

1. it is a ‘special case’
2. it does not conflict with normal exploitation of the work;
3. it does not ‘unreasonably prejudice the legitimate interests of the owner or licensee of copyright.

You see, what the government has done here is say: under international law (Berne Art 9, TRIPS Art 13), we have to confine our copyright exceptions to certain special cases, that do not conflict with normal exploitation of the work and do not unreasonably prejudice the interests of the copyright owner. So, if we put those conditions in the legislation, we comply.

I’ve ranted already about the fact that I think this is a really unfortunate decision. Putting in these conditions does nothing to enhance the certainty of the legislation – presumably, certainty being the reason we didn’t go with a general fair use defence but instead included these 30 pages of specific exceptions. We don’t know what these conditions mean really. They have no basis in our local jurisprudence. They come from international treaty and are directed at governments legislating, not at courts. They will be confusing.

Most confusing of course is the fact that the parody/satire exception is subject to these conditions. Meanwhile, the exception for ‘fair dealing for the purposes of criticism and review’ is not subject to these conditions, but instead, subject to the traditional ‘fair dealing’ analysis. So if you have something that might be parody, you will have to go through two, entirely separate analyses, one using traditional jurisprudence, the other using international jurisprudence coming out of the WTO mostly.

Was there a better way? Well, seems to me that the government could have sought a way of doing what they keep saying they are doing – adjusting the international obligations to fit with Australian copyright law and jurisprudence. There were ways to do so. Particularly, we have a set of ‘conditions’ elsewhere in the Act which could have been used more generally. Section 40(2) (the research and study fair dealing exception) has a set of conditions which even Sam Ricketson – among the strictest readers of the test internationally – has described (big pdf)as a ‘shining example of compliance with the three-step test’.

Using the section 40(2) conditions wouldn’t have been a complete answer – there would still be a need to identify a ‘special case’. But that could have been done, with some open-textured language.

Moreover, it’s pretty arguable that at least in the case of parody, we already have a ‘special case’. After all, many, many countries around the world have a parody defence – without the kind of limitations or conditions that are placed by this Exposure Draft. As Hudson and I pointed out in our original submission to AGs:

It is well known that parodic uses are protected in the United States under the fair use exception to copyright infringement. It is perhaps less well-known that many of the civil law countries, generally considered pro-author, provide fairly generous protection for creators of parodies. The Information Society Directive in the European Union specifically allows Member States to provide an exception applying to ‘use for the purpose of caricature,
parody or pastiche’. France has a specific exception for ‘parody, pastiche and caricature, observing the rules of the genre’. Spanish copyright law provides an exception for ‘parody … provided that it involves no risk of confusion with that work and does no harm to the original work or its author.’ Germany has a ‘free utilization’ doctrine which is doctrinally distinct from US-style fair use, which reaches comparable results in some cases, including in the area of parody. According to Nimmer and Geller, Italian copyright law does not consider parodies, satires etc to be infringements.

In summary, as to the adoption of the three step test into s200AB – I call it a drafting disgrace and a jurisprudential nightmare. But that’s just my blogging-untempered-by-academic-objectivity-and-coolness view I guess.

And then they cut the exceptions back: the strange treatment of the fair dealing exception for research or study

The strangest thing, I think, about the Exceptions Exposure Draft is what happens in part 4 (page 14 of the Exposure Draft as released). This part, according to the explanatory materials, is aimed at ‘clarifying’ some aspects of the existing fair dealing exception for the purpose of research or study. It does a lot more than that, I think.

It’s not entirely obvious on a first reading (I missed it, when I first looked), but the effect of the changes to section 40 is to limit fair dealings when they involve making a copy of a literary, musical or artistic work that is in a published edition (ie, in a hard copy, professionally published version) or in a published literary work in an electronic compilation (eg, a database). In these cases, under the new law, any copy will only be a fair dealing if it involves a reasonable portion. And reasonable portion is basically defined to mean 10% of the pages or words in the work.

In other words, it is no longer a fair dealing for research/study to make a copy of more than 10% of a book. Ever. No matter whether:

• you need to copy more than 10 pages;
• the work is out of print
• the work is out of print and available in only one library or archive in Australia

Etc, etc, etc.

So where on earth did this come from? Why is it suddenly not ok to copy more than 10% of a book for personal research or study? Surely the publishers must have been pushing for it? Well, no. Not as far as I can find. In fact, if you look at many of the submissions from copyright owner interests, there is strong support for the current fair dealing exceptions. I couldn’t find on a quick review any submission seeking this kind of change. It wasn’t in the scope of the Digital Agenda Review. It wasn’t foreshadowed in the Issues Paper. I’m flabbergasted.

And what delicious irony. You can copy the whole of a book you own, into digital format apparently, for your private and domestic purposes. But you can’t copy even 10.5% of a book for research.

It actually reminds me of a wonderful story that my colleague up here in Qld, Robert Burrell, tells, of visiting the British Library to read some of the old legislative material on fair dealing, for his book, Copyright Exceptions: The Digital Impact. He wanted to copy some pages of this material, for his research – so he could write a book on copyright exceptions. The Librarian in charge at the photocopier ruled that he could absolutely NOT copy more than 10%. not that one more page he needed. Even for research. Even when it is unarguably fair (the material being out of print; not readily available anywhere, all that). Although he could sit down and copy the words out by hand….

Robert told this story at the ACIPA Copyright Conference one year. Everyone laughed. Including those AGs people there. Now we see them putting in place the same, silly, absolute rule. The irony, the irony.

Some final conclusions

One of the points I made in my introduction to this post was that the government has chosen to give more generously to the individual as consumer of copyright content, and take from (or give only in a Scrooge-like way) the individual as researcher or transformative user. How do I justify that? Well, think about what I’ve discussed:

1. The Exposure Draft contains exceptions for private copying for time-shifting and format-shifting. For the most part, these are aimed at enabling certain consumptive uses of copyright content. These kinds of uses do not lead to the creation of anything new, or the general furthering of culture and creativity. They enable consumer convenience, which is a fine end in itself, but, one would think, secondary to promoting creativity. notably, these exceptions, while limited in many ways, are not made expressly subject to the three step test.
2. When it comes to transformative use – parody and satire – the exceptions are granted, as many of us argued – but they are made expressly subject to (and potentially, limited by) the three step test conditions. One would hope that, given the presence of parody defences all over the world, these conditions won’t be read too restrictively. But it’s a limit, on a transformative use that does involve new creativity;
3. And when it comes to research – also in some sense leading to new creation and new knowledge – the existing exception has been positively cut back in a potentially ludicrous way. What happened there?

Now, don’t get me wrong. I think there’s a lot to like about what the government has done; I’m pleased to see some more exceptions that many of us argued for. i’m pleased to see that consumers will no longer be mass infringers. That is good for copyright. But there’s a lot of bitter with that teaspoon of sugar. And it is arguable that in policy terms, we are in topsy-turvy land. Consumerism rules, and creativity and transformative use just aren’t as important. I’ll be interesting to see justifications for that before a WTO Panel.