I know, it kind of ruins the symmetry to post again, after 'The Last Post'.

However, just after posting that last post, I got an email from Bill Patry, to let me know of the publication of his new treatise. It can't pass without comment. Bill, whose blog is filled with interesting points of statutory history on copyright, is one of the relatively small number of US academics who genuinely pays some attention to what goes on elsewhere - including here in Australia. The publication of his 6,000 page treatise, for which he did 100% of the research, is a significant achievement and a real milestone. I'm looking forward to looking at it. It even comes with a blog.

I also wanted to thank, publicly, fellow bloggers Michael Geist, Pete Black, and the House of Commons for their kind comments. Blogging wouldn't be the same without them!

 
I have been tagged by the 'Five Things You Don't Know About Me' Meme that is doing the rounds (thanks Abi). (Like Starkoff, I'm not tagging anyone else). So here goes:

1. I have two brothers. They are both doctors. I have two sisters-in-law. They, too, are doctors. I studied law to be different from my older brother. Little did I know...
   
2. The only computer programming I have ever done was in Basic, on my first family computer: a C64. Secretly, I'm hoping that one day someone will teach me some more programming.
3. My first exposure to computers came when my private girls school did something really weird way back in 1985: it gave my (guinea pig) 5th grade class C64s to take home for a year. We were taught to type, do word processing, and some Basic programming. Sadly, or fortunately, this did not lead to me becoming a secretary.
4. There have been two men in my life who really broke my heart. And that is about the most personal thing you will ever find on this blog. And no, I'm absolutely not naming names. A girls' gotta keep some mystery.
   

And here's the last thing you didn't know about me: I am now writing my last ever post on Weatherall's Law. Yes, I've decided (and I've told a few people this recently) that it's time for Weatherall's Law to retire. Like Shane, Glenn and Justin, it's time for me to move on.

Why? Firstly, because I'm tired! In the four years I have been blogging (thanks to Jason Soon), I have written:

• 1005 posts on topics like patent, copyright, and FTAs;
• spilled approximately 385,000 words onto the pages of this blog. That's over 800 pages at 12 point font, single spaced, in a Word Processing Document.
  

She's had her day, I think. Weatherall's Law started purely as an experiment, which I began because I was teaching IT law. From February 2004 (the month the FTA with the US was concluded) it became my way to communicate analysis and commentary on legal developments that were simply happening too fast for other publication media like journals and the like. When new laws were coming down all the time, the only way to get analysis 'out there' in time for it to make an impact was via the blog. When the Attorney-General decides that the consultation period for a piece of legislation is 3 weeks, the only way to provide analysis in a way that helps people has been the blog.

The last 12 months have been particularly insane. Just over a third of the 'words' I have written on the blog have happened in the last 12 months. So I'm tired. And I need to do other academic-y stuff. you know, like write journal articles and books. I've not done enough of that, because of the blog and the law reform involvement. I need to give myself a bit of time to think about things more broadly and deeply. It doesn't happen when you're desperately trying to keep up with things and have views on every development.

It seems like the right time. The Copyright Amendment Bill has passed. With this, we have seen the last of the changes that had to happen because of the FTA, which was the catalyst for me reviving the blog. It's a neat place to draw a line. The kind of analysis this particular blog has offered just isn't as necessary any more. Neat too because I've just moved to Brisbane. You know; new start, new life, new obsessions......

Being a bit of an addict, I'm not able to entirely give up the game. I also think the medium is important enough that I want to keep a hand in. And the medium HAS been good to me. It's got me involved in all kinds of interesting things. Think of it as a downsizing. I'm just - well, shifting home, and downgrading the level of commitment.

From now on, find my thoughts, less frequently, but no less deeply, on LawFont. Which has some big advantages: better technology, particularly for comments, categories for posts, better searchability via Google, and some co-bloggers to take up some of the slack. I won't be posting daily anymore, but I will post on LawFont when something important happens, or when I have some particular bugbear. If you are still interested in what I have to say, I suggest you point your blogreader over in that direction. There's also my bepress site: you can subscribe to emails or an RSS feed to let you know when I have new academic papers out. There might be more now that I won't be blogging as much!

And, of course, there's a new generation of academic bloggers interested in IP in Australia. I'm sure the ground will be well and truly covered by the able members of the House of Commons, Pete Black, and of course, my fellow, Warwick Rothnie.

Thanks for everything. Thanks for the emails, the comments, for reading, for paying attention. Thanks particularly to the people who've contacted me personally or spoken to me personally to tell me that they found the blog useful. I'm going to miss this clunky old website, and its loyal readers.

 
Various reactions to the 'linking is authorisation' Cooper decision handed down yesterday by the Full Federal Court:

• I commented yesterday (summary? 'troubling'. 'Have we, or have we not just had a very extended debate about copyright law in Australia? Was not one of the memes in that debate the idea that copyright ought to 'work' in a digital environment? Are not search engines, and links, fundamental to the way the Internet and digital environment work? Did all this debate completely pass the members of the court by?')
• Techdirt have commented ('the idea that it's the technology creator's job to build in protections against infringement in how they design a tool is also extremely problematic in placing the burden on the technology makers. It's a guaranteed recipe for slowing down innovation by putting in place both chilling effects against innovation and additional development costs')
• Boing Boing comments here ('If that precedent were adopted worldwide, there would be no Google, no Wikipedia, no internet as we know it')
• Black comments here ('I agree with Kim')
  
• The Age has the story here.
• Slashdot has a debate here ('sorry Australia, no more internet for you')
  
• The IPKat comments here ('this sounds nasty')
  

As you can see, the tenor of this commentary is - 'shock horror Australian law says linking is infringement; Google's in trouble'.

Take a deep breath. It's important to appreciate the limitations of this decision. On repeated occasions in recent times, judges of the Australian federal court have emphasised that whether a person is authorising infringement is a highly fact-dependent issue. That is, the judges say that it is a case-by-case analysis, and they really mean it. As I said at the time that the first instance judgment was handed down, just because a judge holds in this context that linking is authorisation of infringement, doesn't mean that linking in another context will be authorisation.

In other words, context is all.

In this Cooper case, you have to remember that Cooper:

• Set up a website visited by hundreds of thousands of people
  
• Set it up with the quite apparent aim of (a) allowing upload of links to MP3s, automatically, and (b) ensuring people could easily search for, and find, mp3 files they wanted
• Set it up to have lists constituting the Australian, UK, Billboard and other charts

This is what the site looked like:

Light blue box on the left has 'popular downloads'. The top one is 'Where is the Love' (black eyed peas). Light blue box on the right has 'latest additions', top one 'If Youre Free' (Audioslave). Across the top we have the Charts: The Australian 40, Billboard 50, Dutch 20, European 20, German 20, MuchMusic 20, UK 20 and USA 20. There are search facilities: you can search by artist or title.

Sure, he wasn't hosting the mp3s, but he really wasn't Google, whichever way you look at it. It was a site designed to simplify the process of MP3 downloads. The description by Kenny J which I quoted yesterday was perfectly accurate:

So far as internet users and remote website operators were concerned, the website was in substance an invitation to use the hyperlinks provided and to add new links in order that sound recordings could be downloaded from remote websites, and a principal purpose of the website was to enable infringing copies of the downloaded sound recordings to be made.

That is what was held to be infringement by authorising - not just a blog with a single link to something unauthorised. It's closer to US-style Grokster-style inducement analysis (at least as outlined in the more sophisticated judgment of Kenny J) than a general ban on linking.

So when you see a quote like this:

"We don't make any distinctions between big websites or small websites", [the spokesman for Music Industry Piracy Investigations (MIPI)] said, adding that MIPI would consider individual blogs on a "case-by-case basis as to whether it would be appropriate to take action".

Ms Heindl's message to Australians is clear: "If you are linking to copyrighted material in an unauthorised fashion, then you can be held liable for copyright infringement."

You need to take it with a grain of salt. As I said. Context is all.

That said, I stand by my criticisms of yesterday. There are a number of problems with the judgments of the Full Federal Court in this case, but the most important three are (a) a failure to acknowledge the Internet/industry context, as this judge-developed doctrine allows, (b) a failure to take any account of developments elsewhere in the world in this area of the law, and (c) the statement of conclusions in unqualified, careless terms that encourage the MIPI-type attitudes (and nasty cease and desist letters) that can be seen in the quote above. And that, I have a real problem with.

 

As I anticipated on Friday, and noted earlier today: the Full Federal Court judgment in the Cooper case has been handed down. This is a significant, appeal judgment on the scope of secondary liability in copyright law: that is, when can one person be responsible for the infringing activities of another?

In this case, the Full Federal Court had to consider whether a website, structured and designed both to provide links to infringing MP3 files, and to provide facilities for the easy, automatic upload of such links, could lead to liability for authorising infringement of copyright for the website designer (Cooper), and the hosting ISP (E-Talk) (the website itself, now down, can still be seen (though not used) via the Internet Archive Way Back Machine (the URL was www.MP3s4FREE.net) To be completely clear, Cooper was not hosting infringing mp3s. But his website did provide easy access and a central point for placing links.

At first instance, Tamberlin J held both liable - leading to much commentary, particularly on the breadth of the Australian concept of authorisation. If you're interested in where Australian law on secondary liability for copyright infringement lay prior to this judgment, and how it compares to US concepts, have a read of this article by copyright leading lights Sam Ricketson (australia) and Jane Ginsburg (US).

Summary: in this judgment, the Full Federal Court has pretty much affirmed the reasoning of the Trial Judge. Overall, I find the reasoning pretty troubling in this case: particularly the reasoning of Branson J, which seems to me to endorse a broader view of appropriate liability than the other judgment of Kenny J. I think the judgment shows three things:

1. That Australian law is out on its own in terms of potential liability for authorisation of copyright infringement. The law is certainly broader - that is, the scope of activities that will potentially lead to liability is wider - than equivalent concepts in the UK (as illustrated in cases like the Amstrad case) or Canada (as illustrated by cases like CCH). And, as Ricketson and Ginsburg point out, it is broader, even, than US law post-Grokster. Anything that would be caught by post-Grokster inducement liability would also be caught by Australian authorisation liability - and then some.


2. More broadly, the case illustrates that Australian copyright law is increasingly becoming a strange, independent beast. The judgments in this case are truly remarkable for their lack of reference to, or engagement with, recent overseas authority or legal developments. Just remarkable.


3. Most remarkably to anyone outside that arcane society of the High Priests and Initiates of Copyright: linking to another website that carries an infringing file does carry some legal risk under the reasoning in this case.

Below, I have some more detail. But let me give you a flavour of what I think. As I read the judgment, quite honestly, I was amazed by the absence of any explicit conscious engagement with the real world. To read this judgment - as I said, particularly the broader one of Branson J - you could be forgive for wondering how much the honourable members of the court actually use the Internet. It's not way the law is described, it is the fact that the judgments can make comments about the potential liability of a website operator for copyright infringement for the most mundane acts - like, oh - linking to another website - without any acknowledgment that that might be an issue, or a problem, or an even slightly undesirable development in the law.

Here's one favourite quote that captures some of the flavour of the Branson judgment:

'Mr Cooper placed considerable weight on a suggested analogy between his website and Google. Two things may be said in this regard. First, Mr Cooper's assumption that Google's activities in Australia do not result in infringements of the Act is untested.'

This quote is striking. Not because it is inaccurate. On its terms, it is obviously perfectly true. No one has sued Google here yet. What is striking is that a statement as potentially momentous as this: that the activity of running a search engine - one of the fundamental activities that makes the 'Internet work' these days could well be infringement, we don't know - can be said without the merest bat of a judicial eyelash.

Have we, or have we not just had a very extended debate about copyright law in Australia? Was not one of the memes in that debate the idea that copyright ought to 'work' in a digital environment? Are not search engines, and links, fundamental to the way the Internet and digital environment work? Did all this debate completely pass the members of the court by?

Now, you might say - well, naturally, the job of the court is to interpret the law, and all that 'debate' and even how the Internet generally operates is not relevant : the court just has to say the law 'as it is', bound, as it is, by precedent including High Court precedent. To some extent, certainly. But there really is more to it than that. The law of authorisation is essentially a common law doctrine, developed through the courts. The meaning of 'to authorise' is a subject of considerable debate. There are real differences between the judgments of the High Court in cases like Moorhouse. There is capacity, in this caselaw, and even in the relevant statutory provisions, to take into account the circumstances of the industry, industry practice, etc. It is not ok, in my view, to ignore all that. It means that the judgment takes on an air of unreality, and we get quotes, in the course of the reasoning, that I can just see being repeated in nasty 'cease and desist' letters all over the land.

I should be clear. It is not necessarily my view that Cooper himself should have got off scot-free. He did more than just set up a few links to a few infringing items. It is however my view that the idea of making someone liable for authorising infringement by linking to other websites is something we should take considerable care with.

My issue is that the judgment of Branson J in particular is stated in broad, unqualified terms that scarcely acknowledge the existence of another view or the need to exercise care in imposing liabilith. The judgment of Justice Kenny is less unqualified, and for that reason, less troubling. But even here there are some issues.

Read more »

 
Peter Black, of Freedom to Differ fame, is talking about organising an Australian BloggerCon in March 2007. Tell him what you think about the idea, the content, etc etc etc here. Now all we have to do is educate him on how to use the apostrophe... (he he he, see that's fixed now!)

 
Judgments (2 of them) are here.
Helpdesk employee wins; Cooper and the ISP lose.
Enjoy!
More when I've read it.
Hat tip: Starkoff again, naturally.

 
... when your email spam filter labels your boss's email as 'spam' (sorry, Vice-Chancellor...).

 
Judgment by the Full Federal Court is due in the Cooper litigation (first instance judgment here; commentary here, here, here, here) on Monday. Cooper deals with issues of authorisation of copyright infringement by an ISP, and by a website that linked to infringing MP3 files.

It's a biggie, in Australian copyright law terms. When, exactly, does one 'authorise' copyright infringement online? How current is Moorhouse now? What do all those Digital Agenda Act provisions really mean? Plus some cross-jurisdictional issues thrown in for fun... and unlike the Kazaa case, this one didn't settle to the disappointment of IP academics all over the country.

What a lovely (!) Xmas prezzie from the Full Federal Court.

(hat tip for the alert: Starkoff)

 
Why does everyone seem to assume I am a bloke? Is it something I said?

 
A few quick links for a Friday:

• According to news from NZ, 'concern is growing' over the New Zealand Copyright (New Technologies and Performers' Rights) Amendment Bill. Reading this story has caused me to update/change/refine some of my comments in the post from yesterday on the TPM provisions.
  
  
• It is also being reported that 'China is tightening control over its online music and game industries, ordering distributors to submit all imported products for approval by official censors', in a move aiming 'to step up control over the Internet and other media, both to shield Chinese companies from competition and to suppress material deemed politically sensitive, violent or sexually graphic'. The US won't be happy. It is these rules regarding censorship and approval that, the US alleges, are used to hold up legitimate distribution of copyright material - thus further encouraging the counterfeit market, where this material tends to be available sooner (see the USTR material on China, including, in particular, the 2006 Report to Congress on China’s WTO Compliance);
  
  
• The Bridges Weekly Trade News Digest reports that Thailand has issued a compulsory license for a patented AIDS drug produced by Pharma coompany Merck. According to the report,

'The Thai ministry of public health authorised the Government Pharmaceutical Organisation to manufacture generic versions of the drug until 2011, and to import generics from India until domestic production comes on line. It specified that the medicines were to be used for the country's widely-praised national HIV/AIDS treatment programme. Bangkok stressed that the decision was in accordance with WTO rules on access to medicine, specifically citing the 2001 Doha Declaration on the TRIPS Agreement and Public Health, which permits compulsory licensing for "emergency cases and public uses."'

This is particularly interesting, because the compulsory licensing provisions are used so rarely. It has of course provoked a reaction: the American Chamber of Commerce in Thailand said that Bangkok's decision to authorise the production of generic copies of Merck's patented drug would send a 'negative signal' to foreign investors (um - which investors exactly? Does Merck think that it won't, as a result of this decision, get sufficient return from the drug from other markets?) But the Bridges story notes the view expressed by expert Fred Abbott, who takes the view that Pharmaceutical companies may be focusing on Thai domestic legislation because they have no case under the TRIPS Agreement, or otherwise under WTO rules. Bangkok's decision appears to be in full compliance with the requirements for compulsory licences set out in WTO law.

Meanwhile, broader issues of access to medicine and encouraging research in developing country diseases have taken a new step forward with the first meeting Intergovernmental Working Group (IGWG) on Public Health, Innovation and Intellectual Property. the IGWG was established in May 2006 by the WHO's top decision-making body, the World Health Assembly (WHA). It was mandated to draw up a medium-term framework based on the findings of an earlier WHO Commission on Intellectual Property Rights, Innovation, and Public Health (CIPIH).

• Europe is apparently backing away from - or slowing down - reform to its private copying levy system, saying that it needs "more reflection'' on a complex issue, and denying that it is pulling the plan under pressure from the French government. It is not saying when the plan might re-emerge. I can't help but wonder whether the fact that Australia has, and the UK and NZ might, allow some free private copying is having an impact on these plans at all?

 
[Note: the TPM part of this post has been updated, 15 December 2006]

So, let's see:

• Australia has passed a copyright amendment bill, with lots of changes, particularly digital ones;
• The UK has the Gowers Review Report, newly released - with various proposed changes for consideration;
• Canada is still waiting, and ... (wait for it, wait for it)
• Now New Zealand has its own Bill! (big pdf here, text version here)

Guess those Canadians drafting their Bill will be looking at all this with interest.

But let's have a quick squiz at the new kid on the block, the Copyright (New Technologies and Performers' Rights) Amendment Bill 2006 (New Zealand).

So what does it do?

Well, for an international audience, it does the WIPO Copyright Treaty and WIPO Performances and Phonograms Treaty - plus some stuff on exceptions reflecting the current debate over private copying. For an Australian audience, it basically does the Digital Agenda stuff, plus a bit of stuff from some of our more recent amendments:

1. It expands (or clarifies) the reproduction right to include electronic copies - and creates an exception for transient/incidental copying worded along the European lines (copying not an infringement if it is transient or incidental, a necessary part of a technological process for making communication or enabling lawful use, and if it has no independent economic significance (whatever that means)).
2. It introduces the 'right of communication to the public' - to replace the broadcast/cable rights (like Australia did in 2000)
3. It seems to go further even than the current draft of the Broadcasters Rights Treaty - but giving webcasters, as well as broadcasters, a copyright right in their 'signal' (known as 'communication works'). It also removes Pay TV's right to retransmit Free To Air TV for free;
4. It limits the liability of ISPs for direct and indirect infringement;
5. It writes new anti-circumvention laws: expanding the existing, very limited provisions and introducing a criminal offence for commercial dealings with circumvention devices (more on this below);
6. It protects electronic rights management information, and introduces a criminal offence for commercial dealings with circumvention devices;
7. it clarifies and amends certain exceptions: including fair dealing, library, archival, and educational use, and time shifting (there's a whole bunch of educational and library provisions)
8. it introduces new exceptions for format-shifting of sound recordings for private and domestic use (more on this below), and for decompilation and error correction of software.

The idea is that all the amendments will be reviewed within 5 years of enactment.

My summary? This law is a really strange - make that bizarre - mix of weird expansions of rights (particularly, the extension of property rights to webcasters and perhaps beyond - well beyond what the Broadcasters' Rights Treaty will do), exceptions that won't work (look at the format-shifting and time-shifting exceptions) - and TPM laws that look much better than anything I've seen anywhere else in the world.

And what happens next? Well, as far as I can see, what happens next is that Submissions are due February (late), the Parliamentary Committee (I think, the Commerce Committee) reports in June. So radically unlike us, it seems, NZ like to have time to think.

The TPM Provisions

Of course, if you've ever before been a reader of this blog, you'll know, I have this 'slightly' manic obsession with TPM provisions. Sad, but true. Particularly since we got our brand shiny new set of TPM provisions (aka anti-circumvention laws, aka the OzDMCA).

So how's NZ looking? Actually, surprisingly good. Clearly they haven't been talking to the USTR recently. Here's a paragraph from the Explanatory Notes:

The focus of section 226 will continue to be on the link between circumvention and copyright infringement, and on the making, sale, and hire of devices or information rather than on actual circumvention. While actual circumvention may
not be prohibited, any unauthorised use of the material that is facilitated by circumvention will continue to be an infringement of copyright. Consumers should, however, be able to make use of materials under the permitted acts or view or execute a non-infringing copy of a work. This is consistent with New Zealand's position on parallel importation of legitimate goods, for example, genuine DVDs, from other jurisdictions. New provisions are introduced to enable actual exercise of permitted acts where TPMs have been applied.

So, this New Zealand proposal:

1. Confines liability (like Australia used to) to the sale/dealing with circumvention devices - not their use (this is good. Geeks are ok)
2. Links liability for such devices to circumstances where the circumvention device could enable infringement of the copyright owner's rights (as many user groups in particular in Australia argued should be the case here);
3. Has real live exceptions.

Personally, when I look at the text, I'm even more encouraged (although it is of course possible that, being someone who has just seen really badly drafted laws go through, perhaps anything that looks even slightly better starts to look good).

Taking a closer look:

1. A TPM is something which is "designed in the normal course of its operation to prevent or inhibit the unauthorised exercise of" a copyright right. That's not bad - it doesn't include access controls
2. A 'TPM spoiling device' (what we would call a circumvention device) is something that 'has no significant application except for its use in circumventing a TPM' (unlike Australian law, which covers devices that have only a limited commercially significant purpose or use other than circumvention)
3. You are only liable for selling circumvention devices, where you 'know or have reason to believe that it will, or is likely to, be used to infringe copyright in a work protected by a TPM' - so if you design your device not to infringe (eg, offer equivalent device), then you are ok.
4. If you are a user who wants to do a permitted act, and can't do so because of a TPM, you can apply to the copyright owner first, and if they don't respond within a reasonable time, you can apply to a qualified person (library, archive, or educational establishment) to exercise the permitted act on your behalf
5. TPM spoiling devices can be supplied to qualified person to exercise a permitted act (so, libraries, archives, and educational establishments can be supplied with spoiling devices to do permitted things).

It's hard to think of a law anywhere in the world, that covers TPMs, that is better than this from a user perspective, and that more narrowly tailors the protection to actually protect copyright, not extend copyright rights. I think it actually passes the Litmus Tests. There are ways it could be improved for users - for example, instead of having to ask a library or educational institution to circumvent for you, why not allow the user to hire someone to circumvent or buy a circumvention device? but that's a pretty minor quibble in what looks like a reasonable kind of law, from a user perspective.

{START UPDATE}

News today has caused me to have another look at the TPM provisions. The one (not insignificant) 'black cloud' on the horizon in the drafting here, I suspect, is in the proscribed acts. Certainly, the proposed law is good in that it focuses on the circulation of circumvention devices, and leaves users alone. As usual, the ban applies to both making/selling circumvention devices, and providing circumvention services. That's normal too.

But, 'circumvention service is defined to include "the publication of information ... intended to enable or assist persons to circumvent a TPM'. In other words, if you publish information, intended to assist circumvention, you can be liable under these provisions. That is broader than most laws, including even the new Australian law. In Australia, under the new laws, circumvention service is defined as follows:

'a service that:
(a) is promoted, advertised or marketed as having the purpose or use of circumventing the technological protection measure; or
(b) has only a limited commercially significant purpose or use, or no such purpose or use, other than the circumvention of the technological protection measure; or
(c) is primarily or solely designed or produced to enable or facilitate the circumvention of the technological protection measure.

So, what would the NZ law cover? Would it cover:

• a newspaper that publishes the fact that circumvention devices are available at a particular place?
• An academic, who places a link to a website where circumvention devices are available?
• An academic, who hosts a website full of various incarnations of the DeCSS code in artistic form?
  

Potential limit on free speech, yes? I wonder whether the NZ Bill of Rights would assist?

A requirement of intention does provide some assistance, of course, to protect the innocent provider of information. But let's put it this way. A blogpost, describing how to circumvent a TPM? That would be illegal under this law, I suspect.

{END OF UPDATE}

The format-shifting (NZ iPod) exception

Another rather interesting provision, of course, is the format-shifting exception. You have to love the fact that (a) we got one, (b) the UK proposes one and now (c) NZ is proposing one, all along similar, albeit distinct lines, all with slightly different conditions. Sigh. So the conditions on this exception are that, if you want to make a copy of a sound recording, for your private use:

1. You must make the copy from a non-infringing, non-borrowed, non-hired copy that you own, and acquired legitimately (overcaution, do you think?)
2. you must use the copy only for 'private and domestic use'
3. You must make no more than one copy for each type of device, and you must own the device
4. you must retain ownership of the copy that you make.

So this is kind of interesting. Note that many of the conditions are similar to what we have here. However there are some interesting differences:

1. Australia doesn't limit the number of copies to just one per kind of device. This was because the original condition (one per format) was considered not to allow what it meant to - ie, iPod use (see my original comments here). Despite these problems, the Gowers Inquiry seems also to have suggested a similar limitation. Looks to me like the NZ proposal has similar problems. Everyone knows that iPods crash, or people update to smaller, cooler iPods. If you can only make one copy per kind of device, then don't you have a problem once your iPod crashes and you have to re-fill it?
2. The NZ proposal requires you to retain ownership of the copy (ie, you can't copy a sound recording and then give the copy away), but the Australian legislation requires you to retain your original copy (ie, the CD you bought) - so people can't buy CDs, copy them all, then sell the CDs second hand.

The Time-shifting exception

Oh my god. Have you seen their time-shifting exception? It's like something our Australian Copyright Council would dream up. I remember well sitting in increasing disbelief as the Copyright Council representative argued to a Senate Committee that before taping a program to watch later, you should have to make reasonable inquiries whether you were able to purchase a download copy (oh, yes, before pressing 'record', I should go online to check whether they are selling copies. Laugh-worthy, truly laugh-worthy; almost as good as the 'watch once' condition that Joshua Gans has mocked elsewhere). For more of that argument, look at their (pdf) submission here.

What happened in NZ? Apparently, they've gone with that kind of condition. In NZ, you will be able to tape to watch later, provided you are 'not able lawfully to access the communication work on demand'. !!!!!!!!!!!!!!!!!!!!!!

Uh huh. So, if Channel Nine are trying to sell you individual downloads of episodes for $2, you can't use your VCR. Ludicrous. Just Ludicrous.

Protection of 'Communication Works': New Zealand's Broadcasters' and Webcasters' rights

New Zealand, like Australia, currently provides for copyright in 'broadcasts' (and 'cable programmes'): this is, in essence, a protection for the broadcast signal, as 'broadcast is defined as 'a transmission, whether or not encrypted, of a programme by wireless communication, where the transmission is capable of being lawfully received, in New Zealand or elsewhere, by members of the public'. This, apparently, isn't technology-neutral enough. Post this Bill, if passed, New Zealand will be protecting "Communication Works", defined as follows:

a transmission, or the making available by a communication technology, of
sounds, visual images, or other information, or a combination of any of those,
for reception by members of the public, and includes a broadcast or a cable
programme.

Very interesting! There has, after all, been a huge fight in WIPO about whether 'Webcasters' should get the same rights as 'broadcasters' - with a lot of people arguing the technology, and market, are different and so the case hasn't been made for webcasters' rights. Don't tell our Attorney-General. He'll probably be upset that there's an area where Australia is not 'leading the world' in copyright reform... Technology neutrality gone mad, in my view.

Conclusion

So, there you have it, folks. TPM laws that I quite like - they're quite limited - and exceptions that are just all over the place.

So, should it be supported? Depends on your priorities. But think about this. NZ have been wanting, I hear, to do an FTA with the US, right? So, if they enact these laws, on the TPM stuff, they have 'something to give' the US - a NZ DMCA, which would be tougher than this. It's practically a tease, if you're sufficient cynical - here, come do an FTA with us and we'll get rid of this model that you don't want us to have!!!

But the exceptions? Do you really want this niggardly, highly conditioned approach? Surely not.

 
For your morning giggle. An appropriate cartoon for all those who have suffered through Australian Copyright Reform, Circa 2006:

 
That at the moment, if you type "Australian Copyright Law" into Google, within the first page of results you get:

• "Boing Boing: Australia's copyright law breaks search engines"
• Google warns Aust copyright laws could cripple Internet. 07/11

On the second page, you get:

• Boing Boing: Australia's copyright law sucks a little less
• Backdown on draconian laws - BizTech - Technology - smh.com.au and
• PM - Copyright law changes faces criticism

Makes ya proud to be Australian, don't it?

 
T'was the week before Christmas, and all through the land
Not a creature was copying: such actions were banned.

The iPods were placed in their cradles with care
In hopes that there soon would be music to share

Then up at the Big House in Canberra - what news!
I sprang to my keyboard, more law to peruse,

And what to my wondering eyes should appear,
A release from Phil Ruddock! Ah yes! Listen here!

A wink of his eye, and a twist of his head
Soon gave me to know I had naught more to dread,

I can take up my iPod, pull out that old scanner,
Buy a TiVo for Yule, use them all! Any manner!

For I heard Phil exclaim, (with much fine print, so small),
Copyright is reformed! Merry Xmas to all!

The Copyright Amendment Act received Royal Assent yesterday. The press release is here. Effective immediately: Schedule 6 (private copying, ³special case² exception, fair dealing, parody and satire, libraries); Schedule 7 (maker of communication); Schedule 8 (responses to Digital agenda Review: educational institutions); Schedules 10 and 11 (Copyright Tribunal). Effective from January: all those criminal bits and TPM bits. This Xmas present will give you a hangover.

 
The Attorney-General has issued this press release about the Gowers Report (I've already blogged on this), rather extravagantly claiming that 'The Gowers Review in the United Kingdom has taken the same approach to copyright reform as the Australian Government in balancing the rights of consumers and creators'.

Extravagant claim? Well, yes. The government has in its comments on copyright law claimed that the 'balance' between consumers and creators is secured by the Australian government's approach to both exceptions, and to copyright criminal law. The Gowers report goes nowhere near what the Australian government has done in relation to criminal copyright laws. Ergo, we are not talking about the 'same approach'.

Insofar as there is a claim that the Gowers report is doing the 'same thing' on copyright exceptions, there are two points to note.

1. First, the Gowers report goes less far in some respects (private copying of sound recordings) but further in other respects (Gowers recommended the UK support exceptions for orphan works (our government hasn't, so far) and for 'creative, transformative or derivative works' (our government didn't).
   
   
2. Second, the real claim in the press release seems to be that 'The Gowers review follows the same approach to copyright exceptions adopted by the Australian Government' - reading between the lines, this must mean that Gowers recommends sticking with specific exceptions rather than going a general fair use defence. Regardless of whether you agree with fair use or not, the more important point would be that as a part of Europe, the UK has no choice on that. The EU Information Society Directive effectively precludes a general, fair use approach.
   

 
Warwick Rothnie (first posts: October 2004) and I (first post: way back in June 2002 believe it or not) are starting to look like elder statespeople in the Australian IP blogosphere. While I've been not nearly organised enough in pointing it out, there's a new generation getting into IP blogging now. So if you've not visited them yet, I suggest you have a bit of a look at:

• Peter Black's Freedom to Differ: not just IP but IT and Australian law and the occasional bit of pure fun. (As Peter has had pointed out to him numerous times, he will be far more interesting when he starts expressing more opinions... hint hint hint hint I know you have them Peter, really I do! But then, I can scarcely talk - if you look at my early posts, I'm far less interesting than Peter is now)
  
• The House of Commons: from the young and enthsiastic at UNSW's Unlocking IP Project (Abi, Catherine and Ben) (I feel old, really old...)
  
• Nic Suzor: QUT/Creative Commons dude with blue hair and occasional posting of thoughts on various matters IP.

House of Commons has a particularly fun post today on the Copyright Amendment Act - particularly notable for its 'Artist's Impression' of the Australian Copyright Act.

So these are the ones I know about. But I'm keen to point out more, if people just email me a link. My reliance on RSS feeds means I often find out about things way after they arise... Let the conversation begin.

Update: remiss of me not to note, of course, that this is just the law IP blogosphere. Notable in the 'beyond law' category is colleague Joshua Gans, MBS economist whose interest in innovation makes the blog a worthwhile stop for those interested in these kinds of issues...

Update 2: a reader reminds me that we should not, in the 'IP blogosphere', reminds me that I should also include these:

• Bazpat (unsurprisingly, mostly about patents!) and
• David Jacobson's 'Australian Technology and IP Business' blog
• Inchoate: David Starkoff with High Court transcript amusement, the etymology of 'to bone', and the occasional bit of IP.
  

 
can be found on Bill Patry's blog, here.

 
Speaking of orphan works, this white paper has been released by the Documentary Organisation of Canada on copyright clearance woes and associated.

 
Attorney-General's new enews on copyright has been published. It is available here. Helpfully, it notes that the Copyright Amendment Act 2006 will shortly be available on the ComLaw website and a consolidated version of the Copyright Act 1968 is likely to be available on ComLaw by the end of January 2007. Not much new there for followers of the process, except the comments on when the law is due to come into effect:

The Bill is awaiting Royal Assent. Some of the provisions in the Bill will commence on Royal Assent (new exceptions and responses to Digital Agenda review in Schedules 6-8 and Copyright Tribunal provisions in Schedules 10 and 11). The encoded broadcast provisions in Schedule 9 commence 28 days after Royal Assent and the remaining provisions (criminal offences and other provisions in Schedule 1-5 and technological protection measures provisions in Schedule 12) commence on 1 January 2007.

So here's what I'm wondering. How can the criminal provisions come into effect when the Guidelines for enforcing the strict liability provisions haven't been drafted? I guess this is what comes of the absence of a requirement that there be guidelines (unlike some other legislation, like the Customs Act). Why constrain a broad discretion to engage in selective enforcement, after all? (and isn't it far from ideal that these complicated new laws come into effect even before a consolidated Copyright Act is available?)

 
Well, the final report of the Gowers Review of Intellectual Property has been released. The 140+ page report can be downloaded from here.

This is a big deal for the UK - albeit it has been easy to ignore the goings on, while we struggle locally with what is now, officially, the Australian Copyright Amendment Act 2006 (Cth). Below, a brief background, some links to the UK commentary, and some thoughts on how the recommendations stack up against/compare to what we've seen in the just-completed round of Australian copyright and other IP amendments.


The background

The basic background to the Review can be found here. In December 2005, the Chancellor of the Exchequer - that is, the Treasury, not the IP Office in the UK - asked Andrew Gowers to conduct an independent [note that?] review into the UK Intellectual Property Framework. According to the terms of reference, the Review was to examine all elements of the IP system, to ensure that it delivers incentives while minimising inefficiency. Specifically:

1. The way in which Government administers the awarding of IP and provides support to consumers and business. The award and observance of IP should be predictable and transparent, with minimal information costs and transaction costs for firms and citizens.
   

2. The way in which businesses and other organisations use IP. The structure of the IP framework should reflect the impact of economic and technological change on the nature of intellectual assets and their importance to businesses across different sectors.
   

3. How well businesses, other organisations and individuals are able to exchange and trade IP – in particular negotiating the complexity and expense of the copyright and patent systems, including copyright and patent licensing arrangements. Exchange of IP should be facilitated by accurate valuation, with no barriers in access to finance, and liquid markets.
   

4. How well businesses and others are able to challenge and enforce IP. Litigation and enforcement should be swift, efficient and judicious with the optimal mix of technical and legal measures. Businesses should be aware of the range of alternative methods to challenge and enforce IP such as mediation and alternative dispute resolution. These methods should be relatively inexpensive, swift, efficient and transparent.

The Final Report includes 54 recommendations, across a very broad range of matters. These are, of course, all just recommendations - the UK Government now has to decide what to do about them all. Some indications of its intentions can be found in its Pre-Budget Report, in which the the government said it endorsed the package of measures on IP enforcement recommended in the Gowers Review, and said it would:

1. tighten penalties for copying and piracy, and provide enforcement agency Trading Standards with an additional £5 million next year to help officials implement new powers to tackle copyright infringement;
2. give individuals new rights for personal use;
3. introduce a new fast track scheme to help small companies to protect their trade marks;
4. set up an independent Strategic Advisory Board for IP policy which will receive £500,000 from the Patent Office to commission research on emerging IP trends; and
   
5. provide new tax reliefs for movies filmed in the UK.

The commentary

The report is newly out, so there isn't a lot of detailed commentary yet, but here's some links to what I've found so far:

1. The IPKat comments here
2. The IP Geek comments here
3. The Open Rights Group (UK) comments here
4. Managing IP comments here
5. Lessig comments here (generally, albeit briefly), here (briefly, on retrospectivity in IP) and here (in the Financial Times on term extension)
6. Michael Geist comments here (I agree with Michael, the recommendations are a starting point for Canada - but it is definitely worth looking at the detail of the report, which has some interesting quirks and limitations to it).
7. update: Techdirt comments here (calling the Report 'too balanced for its own good').
8. update 2: IPKat has links to more commentary here.
9. update 3: Peter Suber (the open access emperor) has comments here.
   

The recommendations

The Report's recommendations span the whole of IP - the law, the administration, the enforcement systems, budgetry items - and cross patent, copyright and trade mark. They will take some time to digest, although a quick read of the recommendations suggests (unsurprisingly) an incremental shifts and changes and adjustments, rather than any deeply radical agenda. As the foreword says,

I do not think the system is in need of radical overhaul. However, taking a holistic view of the system, I believe there is scope for reform to serve better the interests of consumers and industry alike.

This might be the source of Techdirt's complaint:

It tries to walk the fine line of balancing things out for both the industry and consumers -- but in doing so makes the false assumption that this is some sort of fight between each side, and what one gives up, the other gains. That's not true, even though it seems like many people on both sides believe it is. However, it should be pretty clear that that's a dangerous assumption. Any industry grows not by fighting with its customers, but by providing them value so that both sides are happy with the transaction. This fight over copyrights isn't based on who gets more control. The idea of "balance" creates the wrong way of thinking about things. …

It mentions, again, the idea that balance is important, saying: "The ideal IP system creates incentives for innovation, without unduly limiting access for consumers and follow-on innovators." That's true, but also somewhat meaningless. Of course that's what an ideal IP system does -- but does the current system succeed? What if the system doesn't create the proper incentives and does a better job hindering innovation than helping it? And, therein lies the other big problem with "balance." It talks up a lot of fluff, and in the end, pleases no one.

I've not read the whole report, so I'm not sure I have a view on whether this is right. Maybe I will when I've read it all.

What I do want to do, though, is comment on a few specifics.


Copyright

On copyright, the Report recommends both better enforcement, and a series of new exceptions. Sound familiar? Yes, that's what our government has been saying they want to do (that is, 'treat consumers like consumers and pirates like pirates'). The detail, however, is quite different.

The new exceptions recommended are:

1. Educational provisions to cover distance learning and 'interactive whiteboards' (designed to secure and allow the use of 'virtual learning spaces)
   
2. A limited private copying exception 'for format shifting for works published after the date that the law comes into effect'
3. Extension of the research exception to cover all forms of content (we have this already)
4. A Library preservation exception to permit libraries to copy the master copy of all classes of work in permanent collection for archival purposes, and to allow further copies to be made from the archived copy to mitigate against subsequent wear and tear
5. A library 'format shifting' exception for archival copies, to ensure records do not become obsolete;
6. An exception for 'caricature, parody or pastiche'
7. An exception for 'creative, transformative or derivative works' (within the Berne 3 step test) (this appears to be based on a concern particularly about music sampling, and an argument that some sampling should be allowed to create new works); and
8. A provision for orphan works along with guidelines on how much searching should be done before a work is declared 'orphan'.
   

The last two require recommendation to the European Commission, since they are currently precluded by the Information Society Directive exclusive list of copyright exceptions.

The discussion of private copying is interesting: it explicitly discusses the issue of levies, and whether one is necessary for compliance with the three step test. Let me quote from the body of the report:

4.75 The Review believes it is possible to create a very limited private copying exception without a copyright levy. If rightholders know in advance of a sale of a particular work that limited copying of that work can take place, the economic cost of the right to copy can be included in the sale price. The “fair compensation” required by the Directive can be included in the normal sale price. This means, however, that any private right to copy cannot be extended retrospectively as copies of works already sold would not include this “fair compensation”. Therefore, collecting societies may wish to consider making a single block licence available to allow consumers to format shift their back catalogues legitimately.

4.76 There should be some strict limits on the scope of any private copying exception. The Review recommends that the private copying should be limited to ‘format shifting’ (i.e. transferring a work from CD to an MP3 player or from a video tape to DVD) rather than simply allowing any copies to be made for private purposes. The exception would only allow one copy per ‘format’, but it would also have to recognise that transfer between formats may require intermediate steps (or formats) to be taken.

Wow. This looks like the original comments that the Australian government made - this copying should be legitimate, there should be no levy, one copy in any given format with intermediate copies. I suspect, if they try to do this, they will encounter the same problems our government has - it's really hard to draw these limitations. Impossible. You end up writing the iPod-friendly exception that doesn't help owners of Zune.

But is it just me, or does it not really make much sense to say that the sale price can include 'fair compensation', but then talk about making the change only for works created (not sold) after the change? (and yes, I get that earlier contracts at the point of creation might be relevant here, but so might the fact that, for example, this copying is already happening, and the record industry has said they won't pursue people for private copies...).

Arguably, on sound recordings, here in Australia, what we ended up with was more generous than what is being proposed here (we can copy to all our devices, for example). Although, our exception for private copying is limited to certain formats, and has different conditions and limitations on each format (and hence is incomprehensible) - an approach not proposed by Gowers. I hope the UK government doesn't catch the 'complication infection' from the Antipodes in their drafting.

The orphan works stuff is also interesting to us here in Oz - if only because this was one area the government has chosen not to do anything here in Australia despite this radical overhaul of copyright law and exceptions. In February 2006, they said there would be a review of the issue sometime this year. Obviously, they got busy with other things. Will they do anything? I can't help but wonder whether some heat will go out of the issue because the main funded and focused proponents of such an exception - the cultural institutions and educational institutions - have their new 'flexible exception' which could cover many uses (the new s200AB). On the other hand, since that exception doesn't allow any commercial activities, maybe that's not enough.

The interesting thing about the Gowers approach to orphan works is:

1. it effectively endorses a kind of 'light touch' approach, just like the US Copyright Office did earlier this year;
2. it recommends some guidelines on when something can be considered orphan, and most interestingly...
3. it suggests that one way to reduce any 'negative effect' of rights to use orphan works on creators is to establish a voluntary register of copyright - so that owners can use this to take care of their own interests.
   

You know what? About 6 years ago, when I was talking about copyright with Patrick Fair for no apparent reason, we got talking about orphan works. Way back then, he suggested the voluntary register idea might work to take care of orphan works through effectively what is a private solution. Anyone feeling like building a register.....?

This idea is eminently sensible and not particularly regulatory. It therefore won't be on the list of 'things to do in copyright' for our government. But remember, it doesn't have to be government that does something like this...

Also on copyright:

1. a recommendation to retain the existing term for sound recordings and performers' rights (50 years) (our term here is 70 years, by the way - and that's a result of the FTA with the US). What's nice here is to see a truly evidence-based approach, and an evaluation of the various arguments sometimes put forward for copyright term extension. Nice, short, to the point.
2. a recommendation for a 'market survey into the UK collecting societies to ensure the needs of all stakeholders are being met'. It appears that this recommendation is meant to feed into a current European Commission process considering ways to increase the transparency of collecting society operations, and introducing competition between existing European societies. This one will be worth watching. If the EU introduces competition between societies, and the US already has competition (their collecting societes take non-exclusive licenses), Australia may need to consider how to meet the needs of its stakeholders that have to use collecting societies.
   

Anti-circumvention law/DRM

On anti-circumvention law (TPM/DRM stuff) the recommendations are really pretty minimal. There are two recommendations:

1. Make it easier for users to file notice of complaints procedures relating to DRM tools by providing an accessible web interface on the Patent Office website by 2008;
2. DTI should investigate the possibility of providing consumer guidance on DRM systems through labelling convention without imposing unnecessary regulatory burdens.
   

Are you listening, Australian government? The interesting thing is that both of these recommendations would be consistent with our own new regime here in Australia and our FTA. That is:

1. Since the government has introduced a new system of DRM protection, and the capacity for users to seek new exceptions for circumvention where legitimate uses are being prevented, maybe the Department should consider instituting a simple web interface for the making of complaints, so that information could be gathered. Alternatively, if anyone is interested (Choice? ADA? EFA? Someone? Maybe the ACCC???), this could be a useful step prior to making any application to AGD for an exception to allow circumvention. or the AGD, having received a complaint/request for exception, could set up a web interface for commentary/further evidence-gathering processes....
   
   
2. The idea of labelling material with DRM on it should be explored. That has everything to do with consumer protection, and little to do with copyright. Regulatory burdens would also be reduced if the same systems were adopted in different countries, too, you know...

Copyright/IP and crime

There are quite a few recommendations on IP crime and enforcement of criminal provisions in IP law:

1. matching penalties for online and physical copyright infringement;
2. review issues on damages and seek further evidence to ensure that an effective and dissuasive system of damages exists for civil IP caes and that it is operating effectively
3. Home Office should recognise IP crime as an area for Police action as a component of organised crime within the updated National Community Safety Plan;
4. Give Trading Standards the power to enforce copyright infringement (giving them the power and duty to enforce, and the power to test purchases, enter premises, and inspect and seize goods and documents).
   

But look, no strict liability!! No infringement notices!!! And there's some 'balancing' bits even here with a recommendation that the government

Monitor success of current measures to combat unfair competition in cases relating to IP, and if changes are found to be ineffective, government should consult on appropriate changes.

I like theirs better than ours.


Patent

There's a whole lot of stuff on patent; the detail is beyond this post which is already too long. Here's a list of the patent-related recommendations and context from IP Geek:

1. Recommendation 1: Amend section 60(5) of the Patents Act 1977 to clarify the research exception to facilitate experimentation, innovation and education. (page 51)
   
2. Recommendation 22: Maintain a high quality of patents awarded by increasing the use of "section 21" observations: streamlining procedures and raising awareness. (page 88)
   
3. Recommendation 25a: Introduce accelerated grant process for patents to complement the accelerated examination and combined patent search and examination procedures. (page 90)
4. Recommendation 30a: The Patent Office should publish and maintain an open standards web database, linked to the EPO’s esp@cenet web database, containing all patents issued under licence of right. (page 94)
5. Recommendation 30b: The Patent Office should publish and maintain an open standards web database, linked to esp@cenet containing all expired patents. (page 95)
6. Recommendation 23: The Patent Office should conduct a pilot of Beth Noveck’s Community Patent Review in 2007 in the UK to determine whether this would have a positive impact on the quality of the patent stock. (page 90). Such a review is is intended to harness the collective knowledge of experts through the internet in order to help patent examiners find the right citations. The public is invited to submit prior art via a webpage, which can then be rated by the community. The aim is to ensure that bad patent applications are not granted and to narrow claims in applications in order to narrow the scope of protection.
7. Recommendation 25a: Introduce accelerated grant process for patents to complement the accelerated examination and combined patent search and examination procedures. (page 90)
8. Recommendation 17: Maintain policy of not extending patent rights beyond their present limits within the areas of software, business methods and genes. (page 80)
9. Other Recommendation refer to support for the establishment of a single Community Patent, the EPLA and the London Agreement (as an interim step towards COMPAT, and as an improvement in its own right).

One thing I think is interesting here is the set of recommendations aimed at finding ways - harnessing 'outside knowledge' - to improve patent quality. Fascinating.


Some concluding thoughts

As I said, I'm not really in a position to 'assess the whole' here yet. It doesn't seem all that radical, which will displease quite a few, no doubt.

Speaking as an Australian who has had some involvement in the recent processes of IP review and reform here in Australia, a number of things are striking about the process by which this report has been written. These are:

1. The evidence-based approach: independent economic reports on particular issues were commissioned (and not commissioned by interested parties, for example). This evidence-based approach also comes across throughout the whole writing of the report too.

2. The holistic approach: the review has had a look at the whole IP system. It forms an amazing contrast with what has been going on in copyright here in Australia, with a series of apparently unconnected reviews conducted piecemeal by a completely unrelated set of bodies (CLRC, now disbanded, Phillips Fox the law firm, ACIP, several government departments including Industry, Attorney-General's, and DFAT...) over a period of years with little attempt at a 'strategic overview' on IP.

3. The transparency: there were hearings; submissions were published online (compare the 'Fair Use Inquiry' here, where only an extended period of complaint and nagging led to publication of submissions, or the publication of submissions on the TPM Exposure Draft only via 'supplementary submission' to the Senate Inquiry into the Bill). Or compare the at times almost secretive approach our own government took to reviewing IP law. I'm thinking here of the review of the criminal provisions that was never made public; the review of trade mark law which went on with little fanfare and known only to the cognoscenti of trade mark, the Fair Use Inquiry which never led to any kind of report or publication of the government's views except via final drafted legislation (leading to repeated comments by people from every interested group that they don't understand what the provisions are trying to achieve).

Obviously, I've not been involved in the UK process so maybe I'm just getting a rose-coloured view of what's going on over there. But you know what? I'm jealous. People in the UK may not all get what they want. But at least - unlike people here - they look like they can feel they've been listened to and heard on all the important issues.

 
It seems that the Copyright Amendment Bill passed the House of Reps at around 4:15pm today.

Welcome to the new Australian copyright world. Presumably royal assent will occur sometime mid December, and it will all be fully in place soon.

Update: and here's the government's press release, and a 'FAQ' issued by the government on the Bill. According to the press release, we are 'leading the way' in copyright reform. So, um - where exactly are we going? There's even a suggestion that 'England, Canada, and New Zealand were all considering private use provisions and would look to Australia’s model, which balanced the rights of consumers and creators.' Lord preserve them from too close a following....

 
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. Namely:

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.
   

 
You will find, after a period of seriously heavy blogging recently owing to the Australian Copyright Amendment Bill, this blog will be a lot less active in the next while.

I'm in Melbourne, but preparing for a permanent move to the University of Queensland, site of the excellent ACIPA research centre on IP in January, and in any event, the urgency has gone out of the whole blogging thing now that the Bill is more or less done and dusted. We are all a bit copyrighted and commented and submissioned and discussioned out.

But there's a couple of interesting things going on:

• Via Peter Suber - news that the ARC Discovery Grant Rules for funding starting 2008 actually has a statement on open access to outputs from the grants. It's not a mandate but it does appear to be a slight shift in policy, requiring grantees to explain why material isn't open access. Peter praises the move, and I think it's a good thing too - for all kinds of reasons why this is a good idea, I refer you to friend and colleague Andrew Leigh of the ANU, who talks about this a bit. But it's worth noting that this move by the ARC is a pretty risk-free move - and not a strong one in terms of likely effect, either. The Final Reports submitted by grantees of the ARC are important, but this kind of rule is easy to avoid with a pro-forma comment. A grantee could, in their report to the funder, simply state that it isn't open access because publication in important journals is being sought. On the other hand, if it makes academics think about making their papers available, that's probably a good thing, right? So maybe we should see this as an awareness-raising exercise by the ARC. In any event, here's the statement from the rules:

'1.4.5. Dissemination of research outputs

1.4.5.1. The Australian Government makes a major investment in research to support its essential role in improving the wellbeing of our society. To maximise the benefits from research, findings need to be disseminated as broadly as possible to allow access by other researchers and the wider community.

1.4.5.2. The ARC acknowledges that researchers take into account a wide range of factors in deciding on the best outlets for publications arising from their research. Such considerations include the status and reputation of a journal or publisher, the peer review process of evaluating their research outputs, access by other stakeholders to their work, the likely impact of their work on users of research and the further dissemination and production of knowledge. Taking heed of these considerations, the ARC wants to ensure the widest possible dissemination of the research supported under its funding, in the most effective manner and at the earliest opportunity.

1.4.5.3. The ARC therefore encourages researchers to consider the benefits of depositing their data and any publications arising from a research project in an appropriate subject and/or institutional repository wherever such a repository is available to the researcher(s). If a researcher is not intending to deposit the data from a project in a repository within a six-month period, he/she should include the reasons in the project's Final Report. Any research outputs that have been or will be deposited in appropriate repositories should be identified in the Final Report.'

• Another item worth noting: this from IP Watch on the copyright debate in Germany. Having just gone through a significant copyright debate here in Oz, it's always interesting to see similar overseas. Actually, this paragraph from the IP Watch report applies to both Germany and Australia. Deja vu, anyone?
  

'During the November hearings, consumer rights organisations, academics and professional organisations of authors and creators heavily criticised a draft proposal as unbalanced.'

• And a final point - the UK Gowers Report on IP is due out Thursday. Watch blogs like the IPKat for reactions and commentary to this broad-ranging review of the IP system, balance, private copying, the cost of enforcement - all those things we've been talking about here in Australia.

 
While I've been on a plane back to Melbourne, everyone has already heard the news, yes, the Senate passed the Australian copyright reforms. So:

• here's the official press release
• read the Senate hansard here (30 November is the right date)

Presumably, it now goes back to the House of Representatives for the final seal of approval with amendments.

 
A few quick links this morning on the Australian Copyright Amendment Bill:

• You can read the debate in the Senate on the Bill yesterday (several Senators from the Committee: Ludwig, Bartlett, Lundy, McCrossin, as well as Ellison from the government side) here (beware: big pdf). (The debate is at page 23 and following, then page 67 and following). Summary: opponents complain very bitterly about the rush of the Bill, the inadequate time to consult, the issues of criminal liability, and some other areas. Government responds saying they've listened to the issues, are moving amendments, have consulted adequately (and no one will change their minds anyway, so further consultation is pointless), and Australia will have, post-bill, a 'world class' copyright law. Senator Ludwig moved an amendment to the motion, basically decrying the rush and proposing a review of parts of the Bill.
  
• You can read an Op-Ed by the AG in the Tele today here, which focuses on the introduction of the parody defence. This is, of course, one area of the Bill, and the amendments, I've praised.
  

I think there is one aspect of the Senate debate that is worth commenting on. Senator Ellison commented that:

I also advise the Senate that the government has noted some of the media and other commentary on the bill, much of which, disappointingly, referred to extreme and inaccurate scenarios rather than assessing the practical effect of these reforms. I think some commentators are throwing the baby out with the bathwater, and this undermines public confidence in copyright.

Ok, just an amusing side for a minute - what is 'public confidence in copyright'? I mean, it's not like talking about 'public confidence in the police', is it? How do you 'trust' a law?

To be serious, however, I think there has of course been some of this, including, no doubt, on my part (mea culpa, mea culpa, mea maxima culpa). But I do think it's worth noting that 'assessing the practical effects of these reforms' has been made particularly difficult by the approach of the government to the criminal schedule.

This was the one schedule on which there wasn't a process of public consultation. It is the one schedule that commentators only had about a month to digest. It is very broadly drafted - less so now, post amendments, than it was originally, which is of course a good thing. Experts in the field struggle with the meaning of parts of it: see my previous debate with a criminal law expert.

But most importantly, we don't know how this Schedule will operate in practice. Not even the Federal Police are able to tell us that, let alone the Attorney's own department. It may well be, that once guidelines on enforcement are drafted, presumably in the new year, we will all heave a big sigh of relief and wonder what the fuss was about. If they are planned to be enforced against the commercial counterfeiters of the world, then I, for one, will sigh for relief. But for the moment, we have only the official comments that have been released. And they are opaque. Let me quote again the Departmental response to questions on notice:

Question on notice:'What is the policy intent behind imposing strict liability claues and does that mean that kids will be fined?'
Answer from AGD: 'The strict liability provisions are not intended to target one particular group of the community and will be applied by law enforcement agencies in the normal way along with all other criminal offences.'

There is, of course, a slightly different perspective from the AG a few days later (the Attorney-General in a letter to the editor).

And I've asked for any documents that set out how these laws were intended to be enforced, and been told there aren't any.

Now I remain of the view - one I've stated repeatedly in public - that I don't think we are going to see kids being charged or given infringement notices. It's not going to happen, if only because it wouldn't be good publicity for anyone. But I do have some real concerns about the breadth, which I've explored at more length in a previous post.

So yes, it's a shame that the debate has become extreme. I agree with the Senator on that. But it's also, I think, understandable.