Without intending it, it seems I have been publishing a series of posts on letters I have sent or submissions I have made recently in relation to copyright/technology/law issues. So in keeping with this trend I thought to also briefly mention the submission I made last month relating to the Australian Attorney Generals review on the exceptions to copyright infringement for the private copying of photographs (s47J) and films (s110AA). Introduced by the Copyright Amendment Act 2006, these sections permit photographs and cinematograph films to be reproduced in a different format, for private use, in a limited range of circumstances. In this post I will detail my comments relating to the private copying rights for photographs and in the next post will examine the private copying rights for films.
With respect to photographs the issues of concern included whether the current operation of the section provided an appropriate balance between the rights of copyright owners and other interests; what may be the other options for achieving better policy outcomes, and the costs and benefits associated with these. The review also looked at what would be the appropriate circumstances which would warrant additional private copying rights; the kinds of photographs likely to be reproduced under these proposed changes; the likelihood that TPMs would be applied to this material; the impact on the normal market exploitation of the works; and how such changes would improve the achievement of the governments policy objectives. There was also opportunity to comment on whether there should be further restrictions placed on private copying of photographs, how these would impact on normal market exploitation and how such changes would assist in achieving the policy objectives of the government.
Essentially I argued that s47J was currently drafted too narrowly, resulting in an unwarranted restriction on the rights of consumers, particularly in comparison to citizens in other, comparable jurisdictions (such as the United States). I suggested that the section therefore needed to be redrafted to ensure these restrictions were reduced to ensure the law is easily understood and respected by the public. I indicated that there would be no real costs resulting from these changes as they would simply bring the law in line with current practices.
In particular I suggested that there should be a removal of the limitations which prevent digital to digital and hard copy to hard copy copies, as well as a removal of the restrictions on serial copying. Provided copying takes place for private or domestic use – ie. as a non commercial use – there should be no limitation as to the number of copies or nature of the copies permitted.
Wider private use exceptions currently exist for music under s109A which meet Australia’s obligations under the TRIPS Agreement and therefore similar provisions for photographs would also be within the standards expected by the international community.
I suggested that use of the expanded private copying exemption would primarily be for photographs of family members and of family events. The sources of such pictures would most likely be professional photographers such as wedding or events photographers, employees of theme parks, restaurants, schools or the like. In most circumstances there would have already been some payment for these services and the reproduction taking place would be only of a personal benefit.
There may also be some reproduction of other photographs such as landscape or artistic photography. Again the sources would be primarily private individuals engaged as professionals. There may also be some desire to reproduce photographs contained in publications such as newspapers and magazines which would have also been taken primarily by professional photographers with these publications being purchased prior to reproduction.
Whilst this review specifically stated that it did not relate to TPMs (DRM), the frequency with which photographs are likely to be protected was nonetheless considered relevant. I suggested that it would be fairly unlikely that photographs sought to be reproduced for private purposes would be subject to TPMs.
I also suggested that most citizens feel comfortable with reproduction of photographs for personal, non commercial uses and that the law as it stands simply fails to reflect current practices. In this light there would be no difference to the normal market exploitation of photographs and the interests of copyright holders. As the majority of photographs identified to be the subject of this section would have initially been taken by professional photographers there may be an opportunity for a small increase in contractual costs to offset any perceived detriment.
In considering how these changes would improve the achievement of the Government’s policy objectives I suggested firstly, that the government should openly acknowledge the changes in economic and social circumstances brought about by digital technologies and note that there is a far lesser need to provide economic incentives for the creation and distribution of photographs. I referred to Flickr as one example illustrating this point.
I also argued that there should be no additional limitations placed on the private copying of photographs. I suggested that any additional limitations would only dissuade consumers from engaging professional photographers therefore reducing the ability of professionals in this field to sustain themselves financially. In addition to this, any further limitations would prevent the achievement of the central purpose of copyright law which is to benefit the public. Additional restrictions of any kind would create further imbalance in the regulatory measures and offer creators undue protections at the expense of the legitimate enjoyment of the consumer.
With respect to photographs the issues of concern included whether the current operation of the section provided an appropriate balance between the rights of copyright owners and other interests; what may be the other options for achieving better policy outcomes, and the costs and benefits associated with these. The review also looked at what would be the appropriate circumstances which would warrant additional private copying rights; the kinds of photographs likely to be reproduced under these proposed changes; the likelihood that TPMs would be applied to this material; the impact on the normal market exploitation of the works; and how such changes would improve the achievement of the governments policy objectives. There was also opportunity to comment on whether there should be further restrictions placed on private copying of photographs, how these would impact on normal market exploitation and how such changes would assist in achieving the policy objectives of the government.
Essentially I argued that s47J was currently drafted too narrowly, resulting in an unwarranted restriction on the rights of consumers, particularly in comparison to citizens in other, comparable jurisdictions (such as the United States). I suggested that the section therefore needed to be redrafted to ensure these restrictions were reduced to ensure the law is easily understood and respected by the public. I indicated that there would be no real costs resulting from these changes as they would simply bring the law in line with current practices.
In particular I suggested that there should be a removal of the limitations which prevent digital to digital and hard copy to hard copy copies, as well as a removal of the restrictions on serial copying. Provided copying takes place for private or domestic use – ie. as a non commercial use – there should be no limitation as to the number of copies or nature of the copies permitted.
Wider private use exceptions currently exist for music under s109A which meet Australia’s obligations under the TRIPS Agreement and therefore similar provisions for photographs would also be within the standards expected by the international community.
I suggested that use of the expanded private copying exemption would primarily be for photographs of family members and of family events. The sources of such pictures would most likely be professional photographers such as wedding or events photographers, employees of theme parks, restaurants, schools or the like. In most circumstances there would have already been some payment for these services and the reproduction taking place would be only of a personal benefit.
There may also be some reproduction of other photographs such as landscape or artistic photography. Again the sources would be primarily private individuals engaged as professionals. There may also be some desire to reproduce photographs contained in publications such as newspapers and magazines which would have also been taken primarily by professional photographers with these publications being purchased prior to reproduction.
Whilst this review specifically stated that it did not relate to TPMs (DRM), the frequency with which photographs are likely to be protected was nonetheless considered relevant. I suggested that it would be fairly unlikely that photographs sought to be reproduced for private purposes would be subject to TPMs.
I also suggested that most citizens feel comfortable with reproduction of photographs for personal, non commercial uses and that the law as it stands simply fails to reflect current practices. In this light there would be no difference to the normal market exploitation of photographs and the interests of copyright holders. As the majority of photographs identified to be the subject of this section would have initially been taken by professional photographers there may be an opportunity for a small increase in contractual costs to offset any perceived detriment.
In considering how these changes would improve the achievement of the Government’s policy objectives I suggested firstly, that the government should openly acknowledge the changes in economic and social circumstances brought about by digital technologies and note that there is a far lesser need to provide economic incentives for the creation and distribution of photographs. I referred to Flickr as one example illustrating this point.
I also argued that there should be no additional limitations placed on the private copying of photographs. I suggested that any additional limitations would only dissuade consumers from engaging professional photographers therefore reducing the ability of professionals in this field to sustain themselves financially. In addition to this, any further limitations would prevent the achievement of the central purpose of copyright law which is to benefit the public. Additional restrictions of any kind would create further imbalance in the regulatory measures and offer creators undue protections at the expense of the legitimate enjoyment of the consumer.
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