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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).

A couple of quick links:

1. The Senate Committee hearing transcript from yesterday is now available here
2. My blogging colleague and friend, Andrew Leigh, posts here on the Copyright Agency Limited submissions to the Committee. His view is evident from the title of his post: ‘Time to Cut CAL‘. Well worth a read as it makes a fairly basic point: just because CAL is arguing for strong copyright doesn’t mean that its members agree with the views being put.

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…)

Update: The move to a new host is completed, and I think things are working properly now. Please drop me a line at lawfont @ gmail.com if not. Thanks.

Just to let our readers know: I will be moving LawFont to a new webhost over the next few days. There may be periods of downtime, and it is possible that comments on posts might fall into a black hole (but I will try to do my best to prevent this).

Other than this, the changes will be completely behind the scenes, and so the web address (still www.lawfont.com — no need to change your bookmarks), the look and feel, etc, will all be the same.

Apologies for any inconvenience caused.

You may also have noticed comments are back on after a massive spam blitz over the last couple of weeks. I am still tweaking it, but we’re again down to one or two per day.

And then I have a few further improvements planned for after that.

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…)

Regular readers may recall that last week I blogged the fact that proposals to change Australian copyright law to allow some format shifting – touted as allowing people to use their iPods legally – did not, in fact, fit how iPods work. It was good of course to see that there was some response to this issue (whether my commentary, or someone else’s) by the government: in the second reading speech for the Copyright Amendment Bill, we have Attorney-General Philip Ruddock making the following comments:

I note there has been some commentary on the technical aspects of the exposure draft of the bill in relation to format shifting to iPods. That is why the drafts of this bill were made publicly available for comment. The government will listen to and consider comments and make any necessary technical changes to ensure the bill achieves the government’s objectives.

That’s good. I hope they’re talking to the Zune people too. Because the Zune works differently from the iPod. (more…)

Music Industry Piracy Investigations – the Australian group who investigate copyright ‘piracy’ – have a new website. It has all kinds of useful little tools, like ‘Enforcement Kits’ to assist Law Enforcement bodies, and descriptions of law relating to infringement.

One thing in favour of the site is that it describes ‘piracy’ as ‘the deliberate infringement of copyright and/or trade marks on a commercial scale’. That is (correctly) narrower than some claims we’ve seen from the more militant owners.

But I’m really not sure about the ‘Am I a Pirate’ page, which has a whole lot of material on personal copying. The implication – though I can’t see it in text – is that personal copying will make you a pirate. Ick.

I really did think that people must be joking when they talked about patents for tax limitation strategies. Really. Just on the face of it, the idea that the state might grant a monopoly on a particularly creative way of avoiding paying tax – ie avoiding providing the state’s revenue – just struck me as so ludicrous as to be funny. That’s why I expressed disbelief about the Grant case, and wasn’t surprised by its outcome here in Australia. Such things = not patentable, and that seemed right.

Even yesterday, when I saw in the online news that this was an issue in the US, I was a little disbelieving that this could be a serious issue.

I admit it. I was just plain wrong on that. Take a look at this long, serious document, entitled Background and Issues Relating to the Patenting of Tax Advice, prepared by the Staff of the Joint Committee of Taxation, for the Subcommittee on Select Revenue Measures, part of the House Committee on Ways and Means, for a hearing in July 2006.

Beggars belief. Really. May we never reach that stage here.

I’m looking in more detail at the Copyright Amendment Bill 2006. Specifically, I’m looking at the provisions on the fair dealing exception for research or study.

When I looked at the Exposure Draft recently, I complained that:

‘The strangest thing, I think, about the Exceptions Exposure Draft is what happens in part 4 (page 14 of the Exposure Draft as released). …

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.

So, now I’ve looked at the provision again, alongside the Explanatory Memorandum. I don’t know that it does that anymore. In fact, I don’t know what it does anymore. The drafting is so confusing, that I’m really, really lost.

By the way, going through one provision, in a 220 page bill, in detail, when there are bigger picture issues, may appear to be something of an exercise in pointlessness. I think not, for two reasons. First, s40 is the provision that allows students and others all over Australia to copy parts of books for their own personal research. In practice, this is an important exception.

What is more, looking at the confusion that will reign if this provision is enacted makes a broader point: the drafting of this Bill is extraordinarily bad. It fails to achieve, in this and other ways, what it set out to achieve. Now, I know that drafting errors do happen. Looking at this one, in isolation, makes me worry: that more generally, some decision, somewhere, has been made to just ‘brazen it out’ – wack the Bill through, and hope to make the best of a bad (drafting) job. Pass the Bill, in its current form, and we are setting ourselves up for confusion, and various disasters.

Big calls? Let me show you. (more…)