Monday, March 17, 2008

Private Copying of Films

Further to my previous post on the review of the private copying exceptions conducted by the Australian Attorney General’s Department earlier this year, I will now briefly discuss s110AA of the Copyright Act 1968 (Cth) which relates to films.

The review considered whether the current operation of s110AA provides an appropriate balance between the rights of copyright owners and others, what might be the options for achieving better policy outcomes and the costs and benefits of these. Comments were then sought on the circumstances which might warrant the law to permit additional copying, the kinds and sources of films likely to be affected, the frequency with which TPMs might be applied to such material, whether proposed changes would impact on the normal market exploitation of the material and whether these changes would enhance the achievement of the governments policy objectives. The review then asked whether the law should be narrowed to reduce private copying rights, again looking at issues such as normal market exploitation and government policy objectives including the achievement of fair and balanced copyright law. The review also briefly sought consideration as to whether the law should be amended to include films embodied in computer programs.

I suggested that the current operation of s110AA provides undue protection to copyright owners and therefore fails to achieve the objectives of allowing consumers to legitimately enjoy purchased goods and creates inequity given that citizens in similar jurisdictions have much wider rights than Australians.

I stated that the best option is to redraft the section to allow for fewer limitations on private copying for non commercial use. Similar provisions have been drafted with respect music under s109A which illustrates that wider copying rights still meet Australia’s obligations under the TRIPS Agreement.

In considering the costs and benefits of such a change I noted firstly, the creation of incentives for consumers to purchase legitimate material.

There has been a significant change in perception of the film industry since the advent of digital technology with many consumers perceiving the lobbying for undue limitations on private use as being unfair and greedy, furthering a lack of respect and a sense of justification in failing to obtain legitimate goods. The provision of reasonable private copying rights would restore some of the lost confidence created by the restrictions currently in place. There would be no additional cost to the industry as such measures would serve to increase the favourability of purchasing legitimate goods.

Secondly the benefits would be to consumers on an individual level and thirdly to society as a whole.

On an individual level consumers would be entitled to make back up copies, to have copies on more than one device and to make copies in the same format. This would reflect what is, in some cases already current practice and in many others, is very much the desired practice.

The increase usability and availability of culture serves society as a whole by producing an informed citizenship, educated and aware of issues, exposed to a diverse range of material and thus ultimately producing progress within society.

In discussing what changes should be made, I suggested that all private copying for non commercial purposes should be permitted, with no restriction on the number of copies or format of the copies that can be made.

Primarily the kinds of films would include entertainment and documentary style features. The sources would be most commonly professional productions although some amateur productions may also be reproduced.

There is a reasonably high chance that films of an entertainment nature would be the subject of anti-copying measures. Arguably this is less likely for other forms of film such as documentaries, art house and amateur film.

This inquiry did not specifically concern the application of TPMs however I felt it necessary to state that the current provisions as well as any changes could only ever be enjoyed in real terms if the government changed the law with respect to TPMs. Similarly, legislative provisions are needed to ensure that contractual provisions cannot be used to override any offers of fair dealing made under copyright legislation.

...There would be no loss in economic incentives to create and distribute films, no risk of an increase in piracy, nor any negative impact on emerging digital markets.

I therefore argued that there should be no increase in the limitations on the private copying of films.

In discussing the extension of the law to visual images embodied in computer programs I stated that the law should extend private copying provisions to film embodied in a computer game or program. This could be implemented by the inclusion of this form of subject matter specifically within s110AA or in another unique section of the Act. It would be optimal to expressly state its inclusion rather than leave it open for interpretation.

This again gave raise to the issue of TPMs:

...All TPMs are incompatible with consumer rights and with respect to any formulation of fair dealing. Without legitimate access to circumvention devices and the ability to use these to access material, any law purporting to offer private copying rights will be easily avoided by creators. Similarly, legislative provisions are needed to ensure that contractual provisions can not be used to override any offers of fair dealing made under legislation. The government should take steps to prevent the wholesale abrogation of consumer rights through the use of this technology and completely change the law in this area.

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