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One of those issues that has been much debated in the US in copyright circles is whether Google’s Book Search (the project involving digitisation of books and the making of those books searchable) is legal or illegal under US Copyright Law. The issue is whether this is fair use or not. We’ve had academics dividing over the issue (on the pro-book search side, see Lessig, on the anti side, see Siva V). We’ve had major public policy events over the issue. And we have litigation of course before the courts in the US.

Not to worry for us Australians. Apparently, our omniscient Attorney-General already knows the answer. In his interview last week:

“I think that what Google wants to do is to make lawful activity that they are not allowed to do in the United States. Part of their arguments about search engines and the like really arose from the fact that they wanted to acquire material from some of the very large libraries, copy it all, and use their search engines to search it.They essentially want to become the organisation handling the copyright…”

Now, I’m not going to express any views here about whether or not Google Book Search is fair use. Because, you know, that’s a US issue, that is before US courts. But isn’t it great to see that our AG is not prejudging the issues…

[update: where are my manners?  Hat tip, Matt Rimmer for pointing this quote out.]

Sigh. Another day, another copyright story in the media. And no matter how many times I’ve tried to explain the issues to journalists and everyone else, we keep coming back to the same assertions, which betray a poor understanding of what is going on.

Once again now, the simplified version – what do, or don’t, the criminal provisions in the Copyright Amendment Bill do?

1. Does the Copyright Amendment Bill introduce new offences? In general, no, except in 2 areas. In the area of Pay TV, it becomes a criminal offence to access a subscription television service without authorisation. In the area of anti-circumvention law, it becomes a criminal offence to circumvent an access control TPM with the intention of obtaining commercial advantage. In other respects, the law does not introduce new offences. The government’s previous policy was that criminal law shouldn’t intrude into the domestic/private sphere (it wasn’t necessary). The FTA requires a change to that policy.
2. Does the Copyright Amendment Bill expand criminal liability for copyright infringement? Yes, it does, because it introduces strict liability offences. Thus (to generalise), you can now be criminally liable and fined in circumstances where you were not aware of the circumstances that made what you were doing an infringement. For example, if you did not know the copy you were dealing with was an infringement, you wouldn’t have been a criminal before; now you are.
3. Does the bill make it more likely that people will be subject to fines or criminal law? Yes, because the whole aim of the law is to make copyright law more readily enforceable – to give police tools to charge people without having to go through the whole court process. However, the effect on the ground of these laws will depend on what resources police dedicate to their use/enforcement. Last word from the Federal Police was that they hadn’t formed any decided view on the new provisions (!!! You mean they weren’t integrally involved in the drafting?????)
4. Are the criminal provisions targetted at ‘pirates’? On their face, no, because several of the provisions – particularly in the performers’ rights area – don’t require that you be acting for commercial gain or on a commercial scale (the usual definition of ‘piracy’). However, it lies within the power of the government to write guidelines on enforcement in such a way that the laws will not be enforced against ordinary people. We can take some comfort from the AG’s letter to the editor (SMH) last week, which asserted that ordinary consumers would not be targeted. Until the government give us official notification of when the laws are intended to be enforced, we won’t know the effect on consumers.
5. Are you a criminal for using your iPod? On the face of the law as currently drafted, you could be (although the chances of that being enforced are, I would say, slim to none). The analysis works like this:- s132AL makes it a criminal offence to possess a device, which is to be used for copying material protected by copyright, and the copy is infringing. This is a strict liability offence: no intention to use the device for infringing or commercial use is required;

   – copies made on iPods are currently infringing copies (because there is no exception for private copies/format shifting). The new law proposes a format-shifting defence, but on the current draft, that exception does not in fact legalise iPod use (because most iPod use involves people making – and keeping – two copies in mp3 format)

   – thus, if you have an iPod, it (under the current draft) is a device which will be used for making infringing copies – hence possessing it is a criminal offence.

   Now, to avoid this result, all the government has to do is (a) draft the iPod exception properly, to fit the technology, and/or (b) remove the strict liability offence.
   Further, by the way – the government should do both (a) and (b). If they just draft the iPod exception properly, people with iPods may be ok, but people with the next new technological device (like the Zune) won’t be protected from criminal liability.

   Even once the law has been amended in either or both of these ways, you could be criminally liable if you deal in copies on a commercial scale, or distribute them to an extent that prejudices a copyright owner (for example, you sell your iPod with some songs still on it) or use your iPod to record a performance without permission (if this part of the law remains unchanged).

Note one thing. People can point out – as several do, in today’s Australian article – that the criminal provisions are not new, and that is accurate. However, to suggest that these changes are not pretty radical is disingenuous. They might not create new offences, but they do, not insignificantly, expand both the likelihood of being charged, and the scope of liability.

And calling the whole thing scaremongering is a little strange too. Frankly, a lot more scaremongering could be done if people wanted to. Like people could point out that selling 100 CDs could in theory, on the current drafting, lead to a $21 million dollar fine ($4 million on the spot). It won’t of course. No police officer would be that silly. But an issue no one is really talking about is just how high these fines are going to go. With $6,600 ($1320 on the spot) per infringement, and over 30 infringements per CD sold, it could go pretty high, pretty quickly, yes?

The Copyright Amendment Bill has made the Age newspaper again, in this story: ‘The $65,000 question: do you own an iPod?’.  Just try to ignore the fact that they’ve apparently decided I’m a man.  I guess (a) outspoken plus (b) Senior Lecturer and Associate Director necessarily means (c) male.  I’ll try not to get a complex…

Slashdot also has a story, although the thread there, as usual when law is discussed, is full of misunderstandings and inaccuracies.

Hat tip to Michael Napthali: this – from the educational show ‘Behind the News’ – is what kids are being taught about copyright law in Australia:

You’ll soon be allowed to tape your favourite tv program to watch at another time. But you have to delete the recording after one use. You are not allowed to give the recording to a friend. They can come over and watch the program with you, but they can’t take it home.

With MP3s, you can copy your music collection from CDs and other formats to MP3 players. You can even make a compilation CD of all your favourite songs from CDs you own, as long as you put them on a different format, like MP3. But you’re not allowed to share your compilation with a friend, although they can listen to it with you.

The laws are designed to crack down on people who make profit from piracy.’

L.O.L. It’s mostly accurate (the ‘watch once’ condition I don’t think is there). But do you think that this will make any sense at all to kids?

Alex Steel, a Senior Lecturer in the Faculty of Law at the University of New South Wales, specialising in criminal law (he made a submission to the Senate Committee too) has alerted me to this report (beware, big pdf) of the NSW Ombudsman, called On the Spot Justice? the Trial of Criminal Infringement Notices by NSW Police. It’s a report of a review done of a trial using Criminal Infringement Notices in several areas in NSW.  Maybe something similar should be done when the copyright system is introduced? (more…)

The Final Report of the Senate Standing Committee on Legal and Constitutional Affairs on the Copyright Amendment Bill has now been tabled. The parties were unable to reach a consensus report: we have a majority report (ie, Liberal), a Labor Supplementary Report and Dissenting Comments from the Australian Democrats (Senator Bartlett).

Majority recommendations, and a discussion, over the page. Interesting too, that today we have copyright hitting the SMH front page. (more…)

AFACT have responded to my supplementary submission to the Senate Legal and Constitutional Affairs Committee, which I blogged about yesterday. I would have noted this earlier but I didn’t know it was there – sorry!

If you are interested in the criminal issues, you should read AFACT’s response, because it does assist to identify the situations which AFACT are most concerned about, and where they are most keen for the laws to be enforced.

Reading their response made me deeply regretful of three things:

1. I regret that my comments have been perceived as scare-mongering. It has not been my intention to ‘scare-monger’ at any point. I have sought to highlight, through example, the breadth of the laws as drafted. I stand by the view that they are unjustifiably broad, particularly given an international legal standard which says that criminal law should apply to ‘wilful copyright infringement on a commercial scale’. I do not believe, nor does the AFACT response suggest, that any of the scenarios that I have outlined inaccurately represent how the law applies on its face.
2. I regret that there has been no public review process over these laws. It would have helped us all a great deal if there had been a very clear Issues Paper, clearly identifying the kinds of situations intended to be caught by the laws. To some extent, we are all flailing around in the dark here because the laws were introduced with little explanation of the situations to which the laws are intended to apply, and no real discussion of those. I have asked the Department whether there is a public document that seeks to outline the situations in which the laws are anticipated to be applied, and have been told that there really isn’t one.
3. I regret that the Guidelines have not been drafted and released at the same time as a public review of the laws. If we knew when, and how, police discretion was to be guided in the enforcement of these laws, we would have a much better idea if there were areas of real concern.

Having read AFACT’s response, I do feel that there are several matters to which I should respond. (more…)

Quick link: my supplementary submission to the Senate Legal and Constitutional Affairs Committee Inquiry on the Copyright Amendment Bill is now available online here. In the submission I argue two things:

1. The provisions could be amended so that they did not impact on ordinary activities by individuals and businesses, while still capturing the activities that are supposed to be targeted and that cause real concern for organisations like AFACT;
2. Groups other than copyright owner representatives must be consulted in the drafting of guidelines on the enforcement of the new criminal laws. Possible groups include representatives of the cultural and educational institutions, and (on behalf of ‘society generally’) the Law Council of Australia and perhaps the Business Council of Australia.

My basic point is this: these laws are unprecedented in the world and in Australia. We do not need to start with an all-encompassing strict liability and infringement notice scheme. What we SHOULD do is start with narrower provisions, and if they (provably) don’t work, then we broaden them so that they do. Adopting an incremental – rather than an ‘all in’ – approach would importantly reduce the costs of these new laws for ordinary people and Australian SMEs.

It may be worth pointing people who haven’t yet found it to this story on the Australian. The Australian describes a leaked, draft report coming out of a study that the Australian Institute for Criminology is doing on IP enforcement in Australia. To quote the story:

The report, intended as a confidential government briefing, casts doubt on the methodology of some industry piracy studies.

It says the manager of the recording industry’s anti-piracy arm, Music Industry Piracy Investigations, did not know how piracy estimates were calculated, as that work was done by the International Federation of Phonographic Industries in London.

Copyright owners often use street-value estimates to calculate losses, but this assumes that every person who bought pirated goods would otherwise have paid for a legitimate item, the report notes.

…

Many copyright holders claimed links between piracy and organised crime, but AIC researcher had found nothing to support that view.

“Either there is no evidence of any links between piracy and organised crime or it is simply beyond the capacity of rights holders to identify these links,” he wrote, adding that he was concerned about the way piracy figures were being used.

“It is inappropriate for courts and policy makers to accept at face value currently unsubstantiated statistics.

“Either these statistics must be withdrawn or the purveyors of these statistics must supply valid and transparent substantiation.”

Now, let me note three things:

1. the report is a draft, it is leaked, and is still being reviewed
2. I do not underestimate the importance of the issue of piracy to the film industry and others – physical piracy at markets in Australia is substantial. It is very, very easy to find a cheap pirated version of a film, game or software here.
3. I have no problem at all with enforcement against such actors who contribute nothing at all to culture or entertainment in Australia.

But I think that this report DOES highlight something important: it is not appropriate to just jump in, boots and all, with broad, overreaching criminal laws.

One of the points I made in the Senate Legal and Constitutional Affairs Committee on tuesday is that a significant cost of highly specific laws – and very specific and limited exceptions – is that people can’t develop or sell technologies with new and interesting features.

Point in case (via Freedom to Differ).

Andrew Bartlett, one of the few Australian politicians to have a blog, and who was on the Senate Committee that met yesterday to talk about the Copyright Amendment Bill, has this to say:

The legislation has presented me with a bit of a dilemma. It is very complex and many groups have an interest in various parts of it. I have a responsibility to try to get across the legislation and the concerns expressed about it, but I also know the chances of my views having an impact on getting changes made to the legislaiton are fairly minimal. Given I have the major environment law changes on my plate, not to mention trying to ensure I reach as informed a decision as possible on the embryo legislation, as well as plenty of other debates running such as climate change and the water crisis, it does raise the issue of whether the balancing of my priorities would include basically letting the Copyright Bill go through to the keeper. Perhaps I should, but I find copyright issues personally fascinating, so I am keen to grab the opportunity to get a better understanding of it, even if I am unlikely to be able to get changes made at this stage.

And there we have it. When I said, on this blog, a while ago, that I thought it would be a waste of time to make submissions to the Senate given the short time to consider teh Bill (making the process, in my view, something of a farce given the complexity of the Bill), I was told by people from government that I was wrong, that my submission would be important and would be considered.

I came this close (makes small space between fingers) to not submitting. Like Senator Bartlett, I considered ‘letting this one through to the keeper’.  In the end, I submitted on two issues I considered fundamental, and within my expertise: the apparent cap on fair dealing for research, and the criminal provisions.  I suspect I should have stuck to my original intention.  Because what has happened is that the more I have looked into it, the more I have realised how seriously overbroad the criminal provisions are.  I have researched the government’s own principles on the imposition of strict liability, and found these laws wanting on many, if not most, of the criteria.  I have become more concerned, even as I have been forced to acknowledge that the government just isn’t interested in hearing it.
All I can hope is that the government sees the light on this, and makes a real effort to narrow the laws to their intended targets. It can, and should, be done.

Phillip Ruddock last night on ABC PM program on the Copyright Amendment Bill:

‘If you’ve got schools and universities on the one hand saying it doesn’t go far enough and you’ve got copyright owners on the other hand saying it goes to far, we’ve probably got it about right. ‘

Um, no. It could be because the law is really bad, makes things more confusing, and helps no one at all.

And you know what? That could be the case with the Copyright Amendment Bill 2006. This is a law that:

1. will make many businesses around Australia criminal infringers of copyright for the inadvertent acts of employees;
2. includes multiple changes to the law that no one understands;
3. creates format-shifting exceptions and time-shifting exceptions that are technologically redundant before they are introduced, so highly qualified they are unworkable and completely incomprehensible to the average human being; and
4. makes things harder for libraries, cultural institutions and archives – even as we start to see the massive benefits of access to information online.

It is a law condemned as unworkable by some of the most successful, innovative companies in the world – Apple, Google, and anyone who is anyone in open source. It is a law that far from making things fairer for consumers, makes things harder and makes them more likely to be criminals. It is a law that, for the benefit of copyright owners and the convenience of the DPP, imposes strict liability almost across the board in criminal copyright law and thus imposes significant compliance requirements on all businesses in Australia that deal with copyright material. Um, that would be, oh, every business in Australia that uses computers or publishes anything at all in any form at all.

No, Minister, you have not got a balanced law. You have a law that makes things completely unworkable for everyone. And that’s why everyone is complaining.

This Bill is due to pass soon. I back up what the EFF have said. You should be writing to your Minister on this. This Bill should not pass.

Update: In comments to this post on Weatherall’s Law, Craig points out that Google and Apple are not altruistic – they don’t like the law because it makes their business model harder.

That is an absolutely fair comment.  I suppose I’d like to make 3 responses:

1. Yes, everyone is advocating their own interests or biases, and the working through of all that – when it is reasonable, when it is not – is part of the democratic process.  However, it is worth noting that a law that makes things hard for Google and Apple makes things hard for other companies seeking to compete in the technology and software space.  I’m not of the view that we should advantage Google and Apple to the cost of copyright owners generally.  I’m also of the view though that a law that grants very absolute rights to copyright owners isn’t the right way to go.  In this, of course, I’m backed up by any number of reviews, including this recent one from the UK.
2. A lot of the complaints about the law are along the lines of ‘we don’t understand what this means’.  That is the sign of a badly drafted and problematic law, not a balanced one;
3. You should take time, too, to read some of the complaints carefully.  There is excess on all sides, there always is.   But really, some of those complaints are truly amazing.  Among the arguments are these ones criticised by Andrew Leigh.  Another amazing suggestion from one organisation was that we shouldn’t have a time-shifting (tape to watch later) exception unless it was conditioned on consumers first making inquiries as to whether they could download the show for a price from online.  That is, before you press record, you should have to work out whether you could buy the show.  Imagine explaining that to consumers.  It’s almost as good as the ‘no rewind condition‘ that was mooted back in May.  Another suggestion from CAL: that because publishers now sell individual articles from journals, a student photocopying a single article from a journal should no longer be deemed a fair dealing.  If the Attorney-General thinks rejecting these extreme proposals means that the law is balanced, I must with respect disagree.  And yes, I acknowledge that there are some pretty extreme suggestions on the other side of things too.  Libraries and Educational Institutions would love to pay less for things.  The bandying about of extreme suggestions on all sides is not a good thing.  As Jane Ginsburg has pointed out, what brings copyright into disrepute is greed – greed on all sides.  But it all just underlines the point – when you have all kinds of extreme suggestions, the fact that everyone complains doesn’t mean the balance is right.

Someone at Telstra forgot to get their NextG advertisement checked by a copyright lawyer.

You may have seen the ad (it showed last night during Australian Idol, but I’ve seen it before): a good-looking girl having a great time at a live concert holds up her fabulous sexy slimline phone and records what’s going on. She sends it to her home computer, and a whole bunch of the concertgoers follow her home to continue the party at her place. Pan to fabulous large house with seriously rocking party.

What the Telstra people clearly didn’t check is that the Copyright Amendment Bill will make a whole bunch of these activities criminal, with strict liability and a $6,600 fine per offence. Let’s see: (more…)

It’s time, in this series of posts on the Copyright Amendment Bill, to turn back to my usual obsession: anti-circumvention law.

This is one area in the Bill has changed as compared to the Exposure Draft which I previously analysed. Some not insignificant changes have been made here, requiring some new thought. I’ve been asked what my views are on the way the Bill deals with things like region-coding and ‘the Lexmark/Skylink garage door openers/printer cartridge’ issue.

I’m afraid I have to differ somewhat with Brian Fitzgerald here. Brian has condemned the change to the law:

When the Exposure Draft of the proposed amendments was circulated three weeks ago it retained the important notion that a TPM is a device that prevents or inhibits copyright infringement. However when the legislation was introduced to parliament last week that requirement had disappeared. Now any technology used by a copyright owner “in connection with the exercise of copyright” will be protected – even if it does nothing to stop infringement.

This has enormous consequences for Australian consumers. What the High Court decided in Stevens v Sony was that copyright owners should not be able to invoke copyright law to enforce TPMs that control the “use” of lawfully acquired copyrighted material in ways that do not amount to copyright infringement. In doing so the High Court highlighted the importance of ensuring Australians have the liberty to use their legally acquired property as they wished.

In three short weeks the Stevens v Sony principle has gone from pedestal to garbage dump. The law as currently drafted will give copyright owners wide-ranging powers to restrict the use of copyright materials as they see fit.

I’m not so sure. It all depends on how the provision ends up being interpreted. Here are my summary (tentative) conclusions:

1. The law will be successful in preventing the printer cartridge/garage door opener cases, at least as we are currently seeing them.
2. The law will allow a court to make a sensible judgment about whether a TPM really is being used in connection with copyright. In doing so, an Australian court could draw on the reasoning in Stevens v Sony and the US cases on what doesn’t fall within the DMCA.
3. It is not clear how much this law will be a problem if you wish to make competing, unauthorised devices which play or render DRM-protected media formats, such as DVDs, or iTunes songs – regardless of whether your device facilitates copyright infringement or not. It might be a problem. It might not.
4. To do them credit, the government appears to have fixed a big problem I pointed out with the interoperability provisions (not claiming credit, just noting that the issue has been solved) (although there is a drafting error needing fixing).
5. This law does nothing for the person who wishes to make ‘fair dealings’ of copyright-protected and DRM-protected material. If you wish to ‘splice’ protected stuff in, even if it is a fair dealing, you will have to find unprotected formats, however you can. This last, however, was probably inevitable.
6. Particularly in relation to the latter issue, much will also depend on the attitude that the Department takes in exercising their power to make ad hoc exceptions to the access circumvention ban. If they take an approach protective of user rights, the availability of ad hoc exceptions is the potential dark horse of these laws in Australia.

Over the fold, the detail that supports these summary conclusions. As always, I’m open to being corrected on any of the conclusiosn below. (more…)

Brian Fitzgerald today has an article on Online Opinion that summarises, in a very readable form, quite a lot of what I have been saying over the last couple of weeks on this blog about the Copyright Amendment Bill 2006.

Regular readers may recall that a little while ago I blogged about the Exposure Draft which contained the new Enforcement regime for copyright law. You can find that post here. It was pretty brief. But it was quite critical of one key thing, and that is the introduction of offences of strict liability.

Offences of strict liability, by the way, are offences which do not require a mental element, or mens rea. That is, you don’t have to intend to do wrong, or be reckless about whether you are doing wrong. You just have to do the act.

I should note, that that offences of strict liability are not the same as offences of absolute liability. In Commonwealth Criminal law, offences of strict liability do have a defence mistake of fact. That is, if you (a) considered whether or not facts existed, and (b) are under a mistaken but reasonable belief about those facts, and (c) if the facts existed, there would be no offence, then you are ok. Note, you must turn your mind to the issue, for the defence to apply.

Anyway, I’ve had some feedback on that particular post. Yesterday, I was having a bit of an argument with someone about whether the introduction of strict liability was really that big a deal. Today, I was speaking to someone else again. Combined, my interlocutors raised several points:

1. We have strict liability offences for other property offences. what’s different about copyright?
2. The offences apply to commercial conduct, not the kinds of things that ordinary people do, and it is right to treat commercial operators who are infringing copyright on a commercial scale as criminally liable.
3. Strict liability may be needed because you have people – say, the lowest link in the copyright infringement foodchain, like the guy at the market selling the infringing stuff – who may not know what they are doing is infringing, who never turn their minds to the issue at all. Or perhaps we have the guy with the backyard business in burning CDs. He’s not thought about copyright either. But what he is doing is wrong, and we want a way to send that message without being completely draconian about it and sending the guy to jail. On this reasoning, what we want, perhaps, is a system of graded penalties – in particular, low-level on the spot fine type penalties – that can be used against this kind of individual, without the whole rigmarole of the court process, but which can be used to send a clear, direct, immediate message that this is wrong, criminal, infringement.
4. It is not feasible, or desirable, to have just one level of offence and one level of penalty. Far better to have a graded system of strict, summary, and indictable offences – with only the latter two carrying the risk of jail time.
5. What are the situations where, under these laws, they might have unintended reach or consequences? Can you identify situations where the laws would reach, but the resulting penalty would be inappropriate?

These are valid points, and valid questions. They require some thought, and some words, to answer them. I could do it directly, via email, to my interlocutors. But I also know, from speaking to various other people on the phone, that the criminal provisions are one area that people have not had the time, or the understanding, to consider in depth. 87 pages of provisions, which are repetitive, and written in an unfamiliar style, are hard to analyse in a very limited period of time. So I’ve decided to blog my issues, and questions, in the hope of offering people some thoughts, some issues, and starting, if appropriate, a conversation if my fears are considered unfounded. I attempt to do so over the fold. But I note this qualification: if any of the following is incorrect, I apologise, and offer to correct it – just email me. (more…)