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I’ve been reading the submissions made in the Attorney-General’s Inquiry into Copyright Exceptions (colloquially known as the Fair Use Inquiry, or the iPod Inquiry).

Some time ago I mused in blogprint whether the AG would make submissions available online. So far, this does not appear to have occurred. But quite a large number of submissions are available online, and I’ve been spending a bit of time trawling (and then reading). Here’s a list of what I’ve found so far (once again, let me know if I’ve missed anything):

1. Arts Law Centre of Australia (pdf)
2. Australasian Performing Right Association (APRA) (pdf) (note: I have trouble getting a stable link to the APRA submission. If this link doesn’t work, go to APRA’s site, and do a site search for ‘fair dealing inquiry’ – this has always worked for me)
3. Australian Copyright Council (pdf)
4. Australian Digital Alliance (available here in rtf form)
5. Australian Film Commission (pdf)
6. Australian Information Industry Association (pdf)
7. Australian Libraries Copyright Committee (available here in rtf format)
8. Australian Subscription Television and Radio Association (ASTRA) Submission (pdf)
9. Copyright Agency Limited (pdf)
10. Copyright In Cultural Institutions Group (CICI) (pdf)
11. Council of Australian University Librarians (available here in doc format)
12. Dr Simon Evans (constitutional law expert)
13. Electronic Frontiers Australia
14. IPRIA/CMCL Submission (mine) (pdf)
15. Law Council of Australia (available here in pdf)
16. Music Council of Australia (pdf)
17. National Association for the Visual Arts (pdf)
18. Professor Brian Fitzgerald
19. Screen Producers Association of Australia Submission (pdf) (or get via their website here)
20. Screenrights Pty Ltd (pdf)
21. US Library Copyright Alliance (pdf) (interesting view on how US libraries use fair use)

No doubt I’m missing some here, but this is the collection as I’ve found it so far. This is what you get through a pretty directed search of Google, trawling through about the first 10 pages of results, plus looking at the websites of people I’d expect to make a submission. The Copyright Council is also collecting links to submissions, here.

What general comments can we glean from a quick reading of these submissions?

A few interesting things.

First, Kim’s recommendations for fun reading

Two stand-out contenders here. I recommend:

1. The CAL Submission. I think I need only quote the first three paragraphs of the preface to whet your appetite:

‘One of the stories in the world’s most read book, The Bible, about the Tower of Babel reflects the ageless human challenge of communication breakdown. But from the moment peoples of different languages scattered across the earth, humankind has worked to break down those barriers.

From the wheel, to language interpretation and the written word, the printing press and the photocopier – and from the horse and cart to the combustion engine and air flight – we have succeeded in making our world, its people and the information and art we create more accessible.

The speed of change is rapidly increasing. While we know that new digital technology has already delivered a wonderful new era of access, the truth is we’ve only just begun.’

2. The APRA Submission. Paragraphs 7.17 onwards comprise a little circumvention cookbook, providing wonderful detail of how APRA was able to circumvent various copy protection technologies using a three month old Dell computer.

Kim’s favourite whopping ‘three wise monkeys’ submissions (see no evil, hear no evil)

In this category, the submissions which claim that there is no lack of clarity about the current fair dealing exceptions. To say that The Panel case is clear on fair dealing is to assume pretended blindness. Favourite contender here: the APRA/AMCOS submission, which claims:

‘The most recent examination of the fair dealing provisions of the Act, the series of litigation regarding The Panel, shows no confusion or difficulty wiht the structure or content, or the interpretation, of the provisions’

Try explaining that to anyone who has had to read The Panel, or deal with four different judicial views on what counts as fair or not. I would like to just quote myself here on the final upshot of The Panel, if I may:

Those wishing to use little bits and pieces of others’ work must be extra, extra careful now. Particularly about the language they use. Commentators using clips from other peoples’ programs must be extra, extra careful. If you want to avoid copyright infringement you:

1. must take extra special care that you engage in definite criticism of the material. Pass judgment. in bold with underlining. That will help you argue fair dealing, but
2. never, never, never call the excerpt a ‘highlight’ or a ‘little highlight’ of the program. That will make a judge think that you have taken a substantial part

General comments on the scope of the submissions

One thing which is clear is that the submissions range right across issues in copyright law. While the Issues Paper itself might be limited to private copying issues in substance, the submissions are not so limited: ranging across various issues including the statutory licenses, fair dealing, and general access concerns.

Many submissions (eg Screenrights, APRA) refer to the issue of the anti-circumvention laws and their interaction with any review of defences.

For or against fair use?

I’ve yet to see a submission which recommends ‘pure’ fair use (ie fair use replacing Australia’s existing exceptions. Coming out in favour of a flexible exception we do see the Australian Digital Alliance, Electronic Frontiers Australia, the Council of Australian University Libraries, the Cultural Institutions (CICI) and to some extent IPRIA/CMCL (considering the advantages of such; leaving final evaluation to government. We also consider the option of broadening the language of existing exceptions).

Plenty of submissions against the addition of a flexible exception, including the Australian Copyright Council, the various collecting societies (CAL, Screenrights, APRA, Law Council, SPAA).

Without seeing the full range of submissions, however, it is impossible to evaluate which way the balance falls in terms of enthusiasm for exceptions. It is fair to say that the positions in the submissions I have seen reflect the historical attitudes of the relevant parties.

Arguments raised for the introduction of a flexible exception (fair use) include:

1. would provide flexibility
2. current exceptions are being under-used because of uncertainty regarding their scope
3. flexibility is needed for technological competitiveness: current system is a deterrent to developments in technology facilitating uses not specifically allowed under specific exceptions;
4. would encourage risk assessment rather than simple focusing on the definition of the fair dealing purposes
5. existing flexible exceptions (such as the ‘administrative purposes’ exception allowed to libraries) have proved extremely useful in reducing transaction costs
6. would direct courts attention to fairness, moving them away from an obsession with the particular specified purpose (eg, the Macquarie dictionary meaning of ‘criticism/review)

Arguments raised against the introduction of fair use/flexible exception include:

1. would lead to an increase in uncertainty (SPAA, ACC, Law Council, APRA/AMCOS); unclear how it would be interpreted (Law Council, ACC), and would hence lead to more litigation;
2. would encourage further infringement of copyright as there would always be an arguable defence (SPAA)
3. would have a ‘cane toad’ effect: short term solution becomes a long term disaster (CAL (see, I told you you should read the CAL submission. Memorable language!)
4. adding such an exception to existing exception is just ‘double dipping’ (APRA/AMCOS)
5. gives too much power to courts; power to define exceptions belongs in Parliament (CAL, APRA/AMCOS)
6. Australian system as it is gives better access to copyright works, particularly through the libraries/cultural institutions exceptions
7. fair dealing is flexible because new exceptions can always be introduced by Parliament (CAL)
   Fair dealing is ok for emerging technologies/markets because it provides clarity
8. Fair use would be (or could be) inconsistent with Australia’s international obligations (APRA/AMCOS, ACC, Law Council)

Give us parody! Arguments that (even without fair use) existing exceptions need to be broader

One of the most striking things about the submissions I have read is the number of them who argue that our law is not currently good for parody. Submissions arguing for either (a) a broader criticism/review exception, or (b) a new exception for parody, burlesque, pastiche and caricature (or similar language) include the Law Council, IPRIA/CMCL, the Australian Digital Alliance, CAL, ASTRA, EFA and probably others too. Notable about this is the fact that the submissions in favour of a broadening of the fair dealing here do not just come from the ‘user side’, but also from some parties who straddle the user/owner dichotomy in copyright: CAL, the Law Council, and ASTRA.

This may be because the parody area is one where Australian law is so manifestly narrower than most countries around the world as a result of decisions like The Panel. It’s not just the US either – as we outlined in our submission, lots of countries have parody defences. It’s just too easy a target for those opposed to copyright; it represents a manifest public interest (in humour, so very Australian!), and it would cost copyright owners little (they don’t want to license such stuff, and they need freedom to create). It also suggests that the approach of the Full Federal Court in The Panel is just manifestly out of step with societal views of what is legitimate criticism/review.

Other problems with existing exceptions

In addition to the parody issue, there are a number of areas highlighted where there are problems with exceptions. These include the library/archives provisions (see IPRIA/CMCL, CICI, CAUL) and the provisions for disabled persons (see CAL). Several of the online submissions also cite a submission from DEST outlining the problems of complexity facing well-meaning and law abiding institutions. It is to be hoped that the Attorney-General listens, and does not confine himself to the area of private copying. Reform in this area is long overdue, as has been pointed out by numerous past government and public policy reports, summarised in this previous post of mine.

What about private copying?

ah, but what about the heart of the review – the private copying issue? Should we have free exceptions? A statutory levy?

Once again, the battle lines here are drawn. Well and truly drawn. There is no consensus on this issue. In summary, the usual parties line up in favour of remunerated private copying exceptions (ie, a statutory levy):

1. The Australian Copyright Council
2. Screenrights
3. APRA/AMCOS

The Law Council think we have a ‘legal anomaly’, and that there are ‘practical and political imperatives for reviewing the issue of private copying’. They suggest narrowly drafted exceptions, leaving open the question of whether such exceptions should be remunerated. And others line up against such a levy:

1. SPAA (would provide insufficient remuneration)
2. CAUL, Digital Alliance (costs would overwhelm any benefits)
3. AIIA (would interfere with markets for technology; would ‘swim against the tide’ of international legal development).

If you were going to read only two submissions on levies, one for and one against, I would read:

1. The Screenrights submission in favour; and
2. The AIIA submission against.

Oh, and you might also want to read Michael Geist’s recent column talking about the Canadian system and its failures (to get perspective on those submissions which favourably cite the Canadian system). Geist’s summary of the column is:

‘The column argues that while in theory the private copying system provides consumers with the right to copy and artists with appropriate compensation for that copying, it is time to acknowledge that the system has failed and must be dramatically reformed or scrapped entirely.

The IPRIA/CMCL submission I was involved in writing reflects a view I’ve expressed in my working paper on the issue:

1. any system should not leave Australians worse off than consumers in other countries (that means that if the exception is to be narrow, it should be free; if remunerated, it should be broader).
2. the last thing we need is a really, really complicated and confined exception, especially if it is remunerated.

Concluding thoughts

I do not envy the people in the AG’s department who have to wade through all this and reach sensible conclusions. All in all, the submissions I’ve read are long, detailed, and raise a lot of concerns. The submissions above are not the submissions of mad radicals but people of expertise and long involvement (although, as noted, some of the submissions are really quite bizarre in what they say). The weight and number of submissions indicates real concern out there, about a whole lot of different things.

It would be helpful, however, to have the submissions made available online. Without this occurring, it is going to be hard to argue that there is any transparency in the review and reform process. I had to do a lot of digging even to find the small sample above.

It would also be helpful, at some time in the not too distant future, to have some indication as to where things are going next. It’s all very well to engage in this kind of summarising, but where do we go from here? Is there going to be a staged process? What of issues that don’t get dealt with immediately – will they go on the backburner (have submitters wasted their time) or will we see a gradual process of dealing with all these issues? Will more research be done on any of these issues? I look forward to hearing more!