The IT Law Wiki

Perhaps some of you have heard of this already and I am late to the game? Early today I came across a fabulous wiki called The IT Law wiki. It is available here and has 20,391 pages on Information Technology Law. In the welcome section, they write:

This wiki is an encyclopedia of the legal issues, cases, statutes, events, policies, people, organizations and publications that make up the global fields of information law, information technology law (often referred to as "computer law," "cyberlaw" or "Internet law") and telecommunications law. The wiki focuses on the laws, regulations and policy issues that impact the information, IT and telecommunications industries and those government entities, industries, organizations and people that control or use information, IT and telecommunications. It also contains an authoritative set of definitions for those legal, technical, economic, political and policy terms used in the wiki. 

I've had a quick look around it and so far it appears thorough and accurate (but I dont vouch for that - check it out for yourself!) It appears to be a little US centric with a very limited reference to Fair Dealing given the global nature of the laws and issues we are dealing with, is still likely to be a very useful tool. It is also licensed under a Creative Commons Attribution-Share Alike License (3.0).

Australian Digital Alliance

I have never really taken much notice of the Australian Digital Alliance, for some reason I thought they were just another Record Label/Movie Studio lobby group with vested interests. Turns out I might have been wrong.

I have been reading articles recently about two new reports they have released in which they indicate that wider exceptions to Copyright Law in Australia, along with stronger safe harbour provisions, would actually increase the Australian economy by $600 million. They write:

Australia needs a more flexible and technology neutral copyright regime to meet the digital reality of the 21st century and the evolving needs of society. Currently Australia's outdated copyright laws condemn online services such as web hosts, search engines and social media to a less conducive innovation and investment environment than in comparable countries, and restricts uptake of innovative online activities.

In the snap-shot of the reports, they suggest that there are three things holding Australia back;
1. The risks and costs associated with legal challenges
2. The impacts of these risks on investments
3. Potential impacts on innovation.

With respect to the later of these in particular, they write:

With inadequate and inflexible copyright ‘exceptions’ and with safe harbour protections extending only to carriage providers there is substantially more risk to online services in Australia than in comparable countries. The economic contribution possible under a more flexible regime is shown by the success of companies such as Apple, Facebook and YouTube. However in Australia, as the Lateral Economics reports demonstrate, these businesses are exposed to greater risk of liability for copyright violations. This means that Australia is not a natural home for innovation and it reduces our ability to compete globally.

I highly recommend taking a look at these reports and reading the reasons why Australia needs Copyright Law reform - indeed it is fascinating to consider the wealth that can be derived from exceptions to infringement.

While you are there, I also suggest you take a look at the website of the Australian Digital Alliance. It turns out it was started by former Chief Justice of the High Court of Australia, Sir Anthony Mason, in 1998. It was great to read their Positions on Key Copyright Issues. They have formal positions on:

1. Orphan works - for fair and reasonable use, a wide definition, an exception not a licensing mechanism
2. TPP - against secret negotiations outside WIPO and the WTO and for transparency and participation
3. TPMs - for exceptions to allow for fair dealing/fair use
4. Safe Harbours - support amending the law to protect all online services providers including universities, libraries, schools and cultural institutions, as well as IT companies
5. Fair Use - support a broad doctrine as per that in the USA
6. Contract Law - support a change to the law to ensure copyright exceptions are preserved
7. SCCR exceptions - for education, archives and libraries, visually impaired enshrined in treaties
8. Neutral language and consumer copying - support technologically neutral language in the Copyright Act and broad time shifting exceptions, particularly for cloud computing and services such as Optus "TV Now"
9. Unauthorised file sharing - do not support unauthorised file sharing but nor do they support policies that result in the disconnection of a users internet access or holding intermediaries liable. 

It is without a doubt enlightening and very refreshing to see an organisation in this country that is specificially dedicated to reform of Copyright Law that also has strong policy positions. I agree with all of these except the last one - as you know I am in support of voluntary collective licensing for file sharing. However all of these policy positions are well reasoned and supportive of innovation, creativity and freedom of speech. I for one have signed up to their mailing list and I recommend you do to. Great Scott!

Further Reading
Australian Digital Alliance, Potential $600m annual economic boost from copyright reform (September 2012) < http://digital.org.au/content/LateralEconomicsReports > at 11 October 2012

Australian Digital Alliance, Snapshot - Lateral Economics Copyright Research (September 2012) < http://digital.org.au/sites/digital.org.au/files/ADA%20-%20Snapshot%20-%20Lateral%20Economics%20Copyright%20Research%20%28Sept%202012%29.pdf >  at 11 October 2012

EFF Deeplinks, New Study Affirms Less Copyright Restrictions Benefit the Economy, Amid Renewed Calls for SOPA 2.0 (21 September 2012) < https://www.eff.org/deeplinks/2012/09/copyright-and-campaign-misinformation-new-study-affirms-less-copyright > at 11 October 2012

ALRC seeks input into Copyright law reform

This week the Australian Law Reform Commission released the first consultation paper for the Inquiry about Copyright law—Copyright and the Digital Economy (ALRC IP 42, 2012). In their press release from 20 August 2012 they write:

"Under the Terms of Reference for this Inquiry, the ALRC is to consider whether exceptions and statutory licences in the Copyright Act 1968 are adequate and appropriate in the digital environment and whether further exceptions should be recommended. The Inquiry recognises the emerging digital economy and the need to ensure copyright law provides incentives for investment in innovation and content while also allowing appropriate access to that content so that Australia’s needs in the internet age are met, both domestically and internationally... The Issues Paper forms a basis for consultation and asks more than 50 questions relevant to how the current copyright framework is affecting both commercial and creative enterprise and how current exceptions and statutory licences are working in the digital environment. The Issues Paper provides background information, highlights the issues so far identified in research and consultations, and outlines the principles that will shape the ALRC’s proposals for reform. The ALRC invites individuals and organisations to make submissions in response to the questions contained in the Issues Paper, or to any of the background material and analysis provided.  This community input will help inform the development of draft recommendations for reform to be released in a Discussion Paper due in mid 2013."

The Issues Paper is available free of charge from the ALRC website. The ALRC prefers submissions via the ALRC online submission form: www.alrc.gov.au/content/copyright-and-digital-economy-online-submission. Written submissions can also be posted, faxed or emailed to the ALRC.

Postal address GPO Box 3708 Sydney NSW 2001.
Closing date for submissions is Friday 16 November 2012.
For more information about the ALRC inquiry or to subscribe to the Copyright Inquiry e-newsletter please go to www.alrc.gov.au/inquiries/copyright.
The Final Report is due to be delivered by 30 November 2013.


Further Reading
ALRC, ALRC seeks input into Copyright law reform (20 August 2012) < http://www.alrc.gov.au/news-media/media-release/alrc-seeks-input-copyright-law-reform  > at 22 August 2012

Australia and ACTA

WOW!!! It looks as though Australia is going to reject the ratification of the ACTA Treaty. The Australian Joint Standing Committee on Treaties recently released at statement in which it was suggested that there are a number of issues with the agreement: 

“The Committee is concerned about the lack of clarity in the text, the exclusion of provisions protecting the rights of individuals, and ACTA’s potential to shift the balance in the interpretation of copyright law, intellectual property law and patent law,”

The committee recommended that the agreement not be ratified until the committee has received an independent assessment of the economic and social cost, the ALRC has reported on its Inquiry into Copyright and the Digital Economy and there are further clarifications to the terms of the agreement. There is also significant concern that many other countries will not be signing the agreement rendering it ineffective.

This is great news - I was a little concerned when Australia signed the agreement last year but was waiting to see whether or not it would be ratified. It seems that at least in the immediate future this agreement is dead in the water in this country.

Further Information
TechDirt, Another One Bites The Dust: Australian Parliament Committee Recommends Rejecting ACTA (28 June 2012) < http://www.techdirt.com/articles/20120628/01500619519/another-one-bites-dust-australian-parliament-committee-recommends-rejecting-acta.shtml > at 3 July 2012

ZeroPaid, Australian Committee Recommends Against Ratifying ACTA (30 June 2012) < http://feedproxy.google.com/~r/zeropaid/~3/DA-_Xj4Tdd8/?utm_source=feedburner&utm_medium=email > at 3 July 2012

infojustice.org, Australia Parliament Committee Rejects ACTA (27 June 2012) < http://infojustice.org/archives/26450 > at 3 July 2012

TechDirt, What Is ACTA And Why Is It A Problem? (24 January 2012) < http://www.techdirt.com/articles/20120124/11270917527/what-is-acta-why-is-it-problem.shtml > at 31 January 2012

TechDirt, As Countries Sign ACTA, Many Finally Admit Their Copyright Laws Will Need To Change (3 October 2011) < http://www.techdirt.com/articles/20111002/22262616174/as-countries-sign-acta-many-finally-admit-their-copyright-laws-will-need-to-change.shtml > at 11 October 2011

ALRC Terms of Reference for Copyright Law

Yesterday the Australian Attorney General, the Hon. Nicola Roxon, released the final Terms of Reference for the Australian Law Reform Commission's review of copyright law in the digital age. The Terms of Reference are as follows:

Having regard to:

• the objective of copyright law in providing an incentive to create and disseminate original copyright materials;
• the general interest of Australians to access, use and interact with content in the advancement of education, research and culture;
• the importance of the digital economy and the opportunities for innovation leading to national economic and cultural development created by the emergence of new digital technologies; and
• Australia’s international obligations, international developments and previous copyright reviews.

I refer to the ALRC for inquiry and report pursuant to subsection 20(1) of the Australian Law Reform Commission Act 1996 the matter of whether the exceptions and statutory licences in the Copyright Act 1968, are adequate and appropriate in the digital environment.
Amongst other things, the ALRC is to consider whether existing exceptions are appropriate and whether further exceptions should:

• recognise fair use of copyright material;
• allow transformative, innovative and collaborative use of copyright materials to create and deliver new products and services of public benefit; and
• allow appropriate access, use, interaction and production of copyright material online for social, private or domestic purposes.

The ALRC plans to release an Issues Paper in August 2012, and at this time will call for submissions. The ALRC is due to provide a Final Report with recommendations for reform by November 2013.


The Attorney-General's Department has also announced a second inquiry into Technological Protection Measures (DRM). The inquiry will consider the exceptions for circumventing TPMs. Initial submissions are due 17 August 2012 - you can find out more information about it here.




Further Information
ALRC, Terms of Reference Received for the ALRC Copyright Inquiry (29 June 2012) < http://www.alrc.gov.au/news-media/media-release/terms-reference-received-alrc-copyright-inquiry > at 30 June 2012

ALRC, Terms of Reference, ALRC (29 June 2012) < http://www.alrc.gov.au/inquiries/copyright/terms-reference >  at 30 June 2012

Australian Copyright Council, Government releases final ALRC terms of reference and announces review of TPMs (29 June 2012) < http://www.copyright.org.au/news-and-policy/details/id/2129/ > at 30 June 2012


Attorney Generals Department, Review of Technological Protection Measure exceptions made under the Copyright Act 1968 (29 June 2012) < http://www.ag.gov.au/Consultationsreformsandreviews/Pages/ReviewofTechnologicalProtectionMeasureexceptionsmadeundertheCopyrightAct1968.aspx > at 30 June 2012

iiNet High Court Case Dismissed

The Australian High Court has today handed down its decision in the iiNet copyright case, dismissing the appeal and holding that the ISP, iiNet, did not authorise copyright infringement. The case concerned the use of BitTorrent to download and share films under copyright.

The appellants, AFACT, contended that: "iiNet's technical and contractual relationship with its customers gave it the indirect power to control the use of its services – that is, to prevent continuing primary infringements (through warnings, suspension of services and termination of contractual relations)..." [at 58]  "[T]he appellants' case on authorisation ultimately was that iiNet could not avoid secondary infringement unless it implemented a system designed to achieve the removal of infringing material by iiNet customers from the BitTorrent clients on those customers' computers..." [at 59].

iiNet argued however, "that authorisation cannot be determined on the basis that particular factors – such as knowledge or a power to prevent – are either present or absent. Rather, iiNet relied on the language of s 101(1A) and emphasised that each of those factors is a matter of degree, and that a court must consider the extent to which each factor exists before determining whether a person's 'inactivity or 'indifference, exhibited by acts of commission or omission, [has reached] a degree from which authorization ... may be inferred'". [at 61] 

With respect to the technical aspects of the BitTorrent protocol, the court held: "It is important to note that iiNet has no involvement with any part of the BitTorrent system and therefore has no power to control or alter any aspect of the BitTorrent system, including the BitTorrent client. Further, iiNet is not a host of infringing material, or of websites which make available .torrent files relating to infringing material[72]. iiNet does not assist its customers to locate BitTorrent clients or .torrent files by any indexing service or database entries[73]. It cannot monitor the steps taken by users of its internet services under the BitTorrent system, it cannot directly prevent users of its internet services from downloading a BitTorrent client or .torrent files, and it cannot identify specific films to which users of its internet services seek access. Once infringing material is stored on a customer's computer iiNet cannot take down or remove that material, and cannot filter or block the communication of that material over its internet service. Nor has iiNet any power to prevent its customers from using other internet services – and, as noted earlier, several users of an internet service may share an IP address. Whilst the relationship between iiNet and its customers involves the provision of technology, iiNet had no direct technical power at its disposal to prevent a customer from using the BitTorrent system to download the appellants' films on that customer's computer with the result that the appellants' films were made available online in breach of s 86(c)." [at 65]

The court noted that the information provided to iiNet from AFACT regarding breaches of copyright was not of a standard sufficient to support civil proceedings and that iiNet could have been held to be in breach of contract by its customers had it terminated their accounts. [at 75] Furthermore, iiNet's lack of activity following the receipt of the information from AFACT about copyright breaches did not demonstrate the degree of indifference required to give rise to authorisation. iiNet was unwilling to act because of the risks associated with taking action solely on the basis of information provided by AFACT and was under no obligation to employ staff or conduct further investigation itself. [at 76]

This was a unanimous decision.

Further Reading
Roadshow Films Pty Ltd v iiNet Ltd [2012] HCA 16 (20 April 2012) 

Australian Copyright Council, Landmark Judgment on Authorisation of Copyright Infringement (20 April 2012) < http://www.copyright.org.au/news-and-policy/details/id/2060 > at 20 April 2012

Draft Terms of Reference for the Australian Law Reform Commission Reference on Copyright

The Australian Attorney-General, Nicola Roxon, has today announced the Draft Terms of Reference for the Australian Law Reform Commission Reference on Copyright Law. Submissions are open until 27th April 2012. Amongst other things, the ALRC is to consider whether further exceptions should be provided to:

• facilitate legitimate use of copyright works to create and deliver new products and services of public benefit; and 
• allow legitimate non-commercial use of copyright works for uses on the internet such as social networking.

The review is not to duplicate work already being undertaken with respect to the  unauthorised distribution of copyright materials using peer to peer networks; the scope of the safe harbour scheme for ISPs; a review of exceptions in relation to technological protection measures; and increased access to copyright works for blind and visually impaired people.

I strongly recommend readers make a submission in support of the legitimate non-commercial uses of copyright works on the internet as Australia does not have fair use but rather specific fair dealing provisions that at this point do not allow for the use of material on social network sites. You could also include in your submission the need for a sampling right - I propose that all creators should be able to sample up to 5 seconds of existing work without the need to license - this would be particularly relevant and useful for mashups including film and music.

You can find more about the Draft Terms of Reference here.  Unless otherwise specified submissions will be made public.

Submissions should be sent to the Attorney-General’s Department via email: copyright@ag.gov.au (preferred method), fax: 02 6141 3488 or mailed to:

Assistant Secretary

Business Law Branch

Attorney-General’s Department

Robert Garran Offices

3-5 National Circuit

BARTON ACT 2600

Australian Hight Court on Terrestrial Radio Royalties

Just in - the Australian High Court has confirmed that the Copyright Act 1968 validly imposes a 1% royalty rate on commercial radio. The decision in Phonographic Performance Company of Australia Limited (PPCA) & Ors v Commonwealth of Australia & Ors [2012] HCA 8 (28 March 2012) states that the Australian Government, by legislating the 1% royalty rate, did not in fact acquire the property of the recording copyright holders on unjust terms. The music industry were angling for an increase in the royalty rate noting that it has not changed in 48 years. According to the Australian Copyright Council the Howard Government had announced that they would increase the rate in 2006 but the amendments put forward never contained these provisions. I read from an Artist's Twitter post this morning that in other countries the royalty rate is in the vicinity of 3-5% and in their opinion a small increase would have well reflected the change in commercial broadcast value over time. It is a disappointing decision for the music industry and comes on the back of a recent decision that internet streaming by radio stations does not attract a separate royalty payment.

Further Reading
Phonographic Performance Company of Australia Limited (PPCA) & Ors v Commonwealth of Australia & Ors [2012] HCA 8 (28 March 2012) < http://www.austlii.edu.au/au/cases/cth/HCA/2012/8.html > at 28 March 2012

Australian Copyright Council, High Court Upholds 1% Cap on Broadcast Royalties for Sound Recordings (28 March 2012) < http://www.copyright.org.au/news-and-policy/details/id/2056/ > at 28 March 2012

ALRC Copyright Review

News this week that Professor Jill McKeough, the Dean of Law at the University of Technology, Sydney, has been appointed as the head of the Australian Law Reform Commission review on copyright law. The Australian Copyright Council advise that the review is to examine copyright in the digital environment with a particular focus on exceptions to copyright infringement.

The press release from the ALRC states:

"The ALRC expects to receive final Terms of Reference once the Government’s process of stakeholder consultation on the draft Terms is completed by the end of March. The ALRC will publish a regular e-newsletter with news and updates throughout the inquiry and people can subscribe to this newsletter or find further information about the Copyright Inquiry on the ALRC website. The ALRC also uses Twitter to update followers about the ALRC’s work."

Further Reading
Australian Copyright Council, UTS Dean of Law appointed head of ALRC review into copyright in the digital environment (8 February 2012) < http://www.copyright.org.au/news-and-policy/details/id/2034/ > at 9 February 2012

Australian Law Reform Commission, Professor Jill McKeough appointed as ALRC Commissioner for the Copyright Inquiry (8 February 2012) < http://www.alrc.gov.au/news-media/media-release/professor-jill-mckeough-appointed-alrc-commissioner-copyright-inquiry > at 9 February 2012

ALRC Copyright Issues

News this week that the Australian Attorney General is in the process of drafting the terms for a review of copyright law by the Australian Law Reform Commission. The draft terms of reference are to be released soon.

High on the list of priorities should be a new exception for sampling. It would be fair and reasonable for Australian copyright law to introduce a 5 second sampling right to allow for new creations to be made from existing works, especially after the Larikin Music Publishing case in which the band Men at Work were held liable for copyright infringement of the song Kookaburra Sits in the Old Gum Tree. Australia has the opportunity to lead the world by encouraging this art form and I for one would be pleased to see this included in the draft terms of reference.

The Copyright Council Expert Group recently released a paper in which areas in need of reform were highlighted - you can read the paper here. They suggest that further consideration should be given to:

• Non-commercial transformative use of copyright works
• Internet intermediary liability
• Orphan works; and
• Registration of copyright works

As soon as the draft terms of reference are released I will blog with any further information.

Further Reading
Copyright Council Expert Group, Directions in Copyright Reform in Australia (October 2011) <http://www.copyright.org.au/pdf/Copyright%20Council%20Expert%20Group%20-%20Paper%202011.pdf > at 1 November 2011

ABC: The case for piracy

Great article from the ABC in Australia on piracy, check it out here.

"Nowadays, copyright barely resembles what it was originally designed for i.e. to protect both parties: inventors and content creators on the one side and the public on the other. Corporate America and government compliance have written out public interests in many instances."

Further Reading
ABC, The case for piracy (20 October 2011) < http://www.abc.net.au/technology/articles/2011/10/20/3344351.htm > at 26 October 2011

UPDATED: Aus AG calls for submissions on disclosing user identities

ZDNet and the Australian Pirate Party are reporting on a new proposal from the Australian Attorney General that would see a streamlined approach implemented for copyright owners to seek the disclosure of users identities for the purpose of copyright enforcement, most likely leading to a graduated response scheme.

Submissions are open until 22 November 2011 and I urge all readers to write in and oppose replacing the current system of court orders with basic judicial oversight in the disclosure of IP account holders details. The new system, which would replace the need to establish the probability of liability, will simply allow copyright holders to approach the court with the IP address of the user and a search report suggesting that they downloaded a file. Disclosure would be allowed on that basis.

It has been shown time and again that these investigation methods are flawed and in essence this proposal removes any need to establish actual infringement by removing the onus on the copyright holder to show probability. In the USA elderly citizens without file sharing software and even printers have been accused of copyright infringement with the investigation process being faulty.

The six page document, available here, suggests that the term 'carriage service provider' under the Telecommunications Act be expanded and that copyright Safe Harbours establish incentives for ISPs to co-operate with copyright holders.

This is a bad deal for the Australian public with need for court orders for the disclosure of private information being a basic human right. Write in now and show your opposition to the proposed changes. This is also a bad deal for ISPs who, despite having their costs met under the scheme, will be forced into the middle between copyright holders and users and be overwhelmed with the work of providing records to anyone who asks.

UPDATE: Apparently the AGs Department accidentally published a draft and the real document which has now been published does not call for a streamlined disclosure process... still worth a read and making a submission. You can find the updated document here.

Further Information
Australian Attorney General Department, Revising The Scope of the Copyright 'Safe Harbour Scheme; & the Process of seeking ISP Subscriber Details in Copyright Infringement Matters:Consultation Paper (October 2011) < http://www.ag.gov.au/www/agd/rwpattach.nsf/VAP/%28689F2CCBD6DC263C912FB74B15BE8285%29%7ERevising+the+scope.pdf/$file/Revising+the+scope.pdf > at 14 October 2011

ZDNet, Govt considers 'streamlined' piracy policy (14 October 2011) < http://www.zdnet.com.au/govt-considers-streamlined-piracy-policy-339324313.htm > at 14 October 2011

Delimiter, Govt redacts ISP anti-piracy consultation text (17 October 2011) < http://delimiter.com.au/2011/10/17/govt-redacts-isp-anti-piracy-consultation-text/> at 18 October 2011

Attorney Generals Department, Revising the Scope of the Copyright Safe Harbour Scheme (October 2011) < http://www.ag.gov.au/www/agd/agd.nsf/Page/Consultationsreformsandreviews_RevisingtheScopeoftheCopyrightSafeHarbourSchemetheProcessofSeekingISPSubscriberDetailsinCopyrightInfringementMatters > at 18 October 2011

ACTA and Larrikin

Two important developments in Australian Copyright issues this week with the signing of ACTA and a High Court determination with respect to the Larrikin Music Publishing case.

The ACTA agreement was signed in Japan this week - Australia, the USA, Canada, Japan, Morocco, New Zealand, Singapore, and South Korea all signed on. The agreement does not, as originally intended, force countries to introduce a three strikes or graduated response scheme. It does however ensure that circumvention devices are illegal and further reinforces seizure and forfeiture laws with respect to counterfeit and pirated works and requires open ended damages awards for copyright infringement.There is not likely much change in the law required in Australia so the signing of the agreement is not that much of a problem - the agreement was significantly worse in its original form and has undergone significant changes over the three years it has been negotiated.

In other news the High Court of Australia has refused to hear an appeal in the Larrikin Music Publishing case leaving the Full Court of the Federal Court ruling in place that Men at Work infringed the copyright in the Kookaburra song. This is a disappointing outcome with the case a perfect example as to why fair dealing is a narrow and inflexible approach to sampling. I have previously written about the case here.

Further Reading
ArsTechnica, US signs ACTA (6 October 2011) < http://arstechnica.com/tech-policy/news/2011/10/us-signs-international-anti-piracy-accord.ars > at 11 October 2011

TechDirt, As Countries Sign ACTA, Many Finally Admit Their Copyright Laws Will Need To Change (3 October 2011) < http://www.techdirt.com/articles/20111002/22262616174/as-countries-sign-acta-many-finally-admit-their-copyright-laws-will-need-to-change.shtml > at 11 October 2011

TechDirt, Insanity: Men At Work Lose Final Appeal For Using Brief Riff Of Classic Folks Song, Which Went Unnoticed For Decades (7 October 2011) < http://www.techdirt.com/articles/20111007/14211416254/insanity-men-work-lose-final-appeal-using-brief-riff-classic-folks-song-which-went-unnoticed-decades.shtml > at 11 October 2011

ABC Law Report: Copyright and the Courts

You can listen to the most recent Law Report from ABC Radio National here.

Last Tuesday the show examined the current disputes in the courts regarding copyright and the internet. Looking at a number of current issues the show covers the Kazaa litigation, the introduction of the parody and satire exceptions within the the Copyright Act, the iiNet case as well as the Men at Work case concerning the song Down Under. Graduated response schemes are also discussed briefly.

Interviews are given by an illegal downloader called David, Sabiene Heindl the General Manager of Music Industry Piracy Investigations, Jock Given a Professor of Media and Communications at Swinburne University, Ross Stevenson broadcaster, lawyer and one of the writers of The Games and Michael Hirsh producer with production company Working Dog and the former executive producer of the Australian television show The Panel (which is no longer on air).

Further Information
The Law Report, Copyright and the Courts (17 May 2011) < http://www.abc.net.au/rn/lawreport/stories/2011/3215116.htm > at 23 May 2011

Roadshow v iiNet

For those that havent yet caught up the Full Court of the Federal Court of Australia has determined that iiNet are not responsible for the infringement on their networks. In a strong statement for ISP independence in this country the court held that simply providing the infrastructure of the internet does not mean that ISPs are liable for the actions of their users. The court writes [Emmett J at 257]:

...while the evidence supports a conclusion that iiNet demonstrated a dismissive and, indeed, contumelious, attitude to the complaints of infringement by the use of its services, its conduct did not amount to authorisation of the primary acts of infringement on the part of iiNet users. Before the failure by iiNet to suspend or terminate its customers’ accounts would constitute authorisation of future acts of infringement, the Copyright Owners would be required to show that at least the following circumstances exist:

• iiNet has been provided with unequivocal and cogent evidence of the alleged primary acts of infringement by use of the iiNet service in question. Mere assertion by an entity such as AFACT, with whatever particulars of the assertion may be provided, would not, of itself, constitute unequivocal and cogent evidence of the doing of acts of infringement. Information as to the way in which the material supporting the allegations was derived, that was adequate to enable iiNet to verify the accuracy of the allegations, may suffice. Verification on oath as to the precise steps that were adopted in order to obtain or discern the relevant information may suffice but may not be necessary.
• The Copyright Owners have undertaken:
  • to reimburse iiNet for the reasonable cost of verifying the particulars of the primary acts of infringement alleged and of establishing and maintaining a regime to monitor the use of the iiNet service to determine whether further acts of infringements occur, and
  • to indemnify iiNet in respect of any liability reasonably incurred by iiNet as a consequence of mistakenly suspending or terminating a service on the basis of allegations made by the Copyright Owner.

This is not a unanimous decision and is likely to be appealed - in particular there was much discussion as to whether iiNet had actually implemented its policy with respect to infringing activity and dispute as to whether the safe harbour applied. Stay tuned for the next episode.

Further Reading
Roadshow Films Pty Limited v iiNet Limited [2011] FCAFC 23 (24 February 2011) < http://www.austlii.edu.au/au/cases/cth/FCAFC/2011/23.html > at 25 February 2011

ACMA and the need for Copyright Reform

The recent ACMA report on the usage of the internet by Australian citizens also details uses of the internet other than entertainment and amusement – these are the uses that are put at risk from a three strikes or graduated response scheme [at pg 15]:

79% Communication – email, instant messaging, VOIP
61% General browsing/surfing
75% Research and information
35% Blogs and online communities
64% Banking and finance
28% Buying/selling/shopping
26% Interactive – enter competitions/register on website

The internet has clearly become a significant part of the everyday lives of Australians and while at this stage there has been no overt support for a three strikes policy one wonders sometimes if these politicians read their own research. The Greens have indicated a willingness to review the Copyright Act and the Australian Attorney General has also noted the need for reform. As the Australian Copyright Council reported in October of this year:

Under the heading “Cleaning Up Copyright”, the arts policy released by the Greens just prior to the recent election stated: “Our copyright system is struggling to keep pace with the times. A system that is meant to be about nurturing creativity by rewarding it is at risk of stifling such creativity in complexity. At the same time we need to recognise that copyright protects the intellectual property of an artist and provides an important income stream. We need a copyright structure which rewards creators while respecting fair use and avoiding administrative complexities. “There may be no need for wholesale change but it will certainly require political engagement for any kind of reform to take place.”

Lets hope that when it does come time for considering alternatives to the current system that the major parties do not head the same road as New Zealand and France with a three strikes scheme. Much of, what is now, everyday activities for Australians could be at risk if they take the short sighted path of a graduated response scheme. Reform is absolutely needed its just a matter of which direction they intend to take.

Further Reading
Australian Communications and Media Authority, Australia in the digital economy: the shift to the online environment (November 2010) <http://www.apo.org.au/research/australia-digital-economy-shift-online-environment> at 1 December 2010

Australian Copyright Council, The Attorney General and the greens put copyright reform on the agenda <http://www.copyright.org.au/news-and-policy/details/id/1832/> (29 October 2010) at 1 December 2010

So ...Why Not?

Following on from my post yesterday about a proposed license scheme for file sharing I thought today I would try to answer the obvious question which is, why hasn't something like this been done yet?

The short answer is that it can't be done yet. Why? Because the four major record labels are not people - they are corporations. Corporations whilst enjoying the rights of people actually lack moral capacity (find and read Aidan Ricketts LLM thesis & the book 'When Corporations Rule the World by Korten). The Corporations Law requires that directors make decisions in the interests of the corporation (the business judgment rule) and from that comes considerations about profits - by law they can only do something if it will ensure more money to the corporation. Until we reach what I call the 'tipping point' that is the point where is it financially more viable to agree to a licensing regime there simply can't be one on a voluntary basis.

Furthermore compulsory licenses are hard to implement too - International Agreements raise the prospect of trade sanctions against Governments that do not act to protect intellectual property rights. While the big four still lobby for strong protections there are slim possibilities that Governments can enact legislation.

There's a lot more about this yet to go into my thesis but essentially it comes back to the fact that corporations are not people - they can't think of anyone but themselves and by law the directors are stuck even if they can see the benefits of these types of proposals. SO wait for the tipping point or make a strong case to the Government (unlikely in the USA due to campaign donations/public choice theory).

Without meaning to induce anything I would like to finish by saying - perhaps the more people file share now the sooner we will get some common sense back into the music industry....

So what could be better than this?

For my thesis I have been re reading three proposals for an alternative to litigation with respect to illegal file sharing. The three models I have been reading about come from Terry Fisher in his text ‘Promises to Keep’, Neil Netanel’s Non Commercial Use Levy and the EFF’s White Paper in this area. While each of these have the potential to realign the digital environment to allow for compensation to artists at the same time as the free sharing of music, each appear to me to have short comings that would result in a difficult implementation.

What I wanted to write about today is what I consider to be the best alternative and in some respects this comes from a mashup of ideas that these three offer. I propose a Compulsory/Voluntary License for music only, with changes to intellectual property law to allow for 3 second or less samples of music.

The Compulsory/Voluntary License I propose to allow for file sharing would see copyright holders being forced to release their works to the public while allowing freedom of choice for consumers. For a small flat monthly fee payable by file sharers they would be offered immunity from litigation for the sharing of music for non commercial purposes. This would ensure that all music is available to listeners at the same time as recouping a significant amount of funds for artists. Digital tracking and/or population sampling would be used to ensure that the funds are distributed to copyright holders based on popularity. Applying to non commercial uses only copyright holders would remain free to negotiate prices for other uses particularly those that relate to the mass media. I propose that the funds be divided up based on popularity however a threshold of downloads would need to be achieved to receive payment. I suggest that a model be introduced that ensure that a greater number of artists receive payment for their music but also that a sector of society remain amateur. Economic modelling would ensure that the funds are divided up in a way that would mimic the market place and as such it would not be possible to remunerate artists for every single download but rather ensure a professional sector of creators receive some concentration of funds.

Furthermore I propose that copyright law be altered to allow for a 3 second sample in either non commercial or commercial works. As a person with a background in law (not music) I am painfully aware of the expense and time that artists must spend accounting for samples they seek to use in new songs. I believe a blanket 3 second rule would alleviate much of the confusion that arises with respect to sampling. A 3 second rule would enable short riffs to be used and could be looped or repeated at will without incurring the need to negotiate licenses. This would provide enormous clarity to what is right now a difficult area of the law. Follow-on creators would have the certainty they need to ensure that their compositions would not attract litigation at the same time as protecting the integrity of the original composition.

These are two of the ideas that are central to the 5th chapter of my thesis and to me appear to be the best way of achieving a balance in the current debate.

Sony Walkman

Sony has announced it will stop producing its classic Walkman with the digital era displacing it with mp3 players and mobile telephones. I myself had a Walkman many moons ago and can't help but think of this as a milestone in the move to digital technologies.

The ABC report on this announcement discusses our love for mixtapes and taping songs off the radio - if only we had known then we were pirates perhaps the law would have been changed sooner but as it stands both of these activities were illegal. That didnt stop us though. In recent years creating a mixtape of songs we own is now legal but like so many mine were from friends and that of course remains illegal. DRM wasnt even an acronym back then.

Its high time the music industry got with the program on the sharing of music.

Further Reading
ABC, Tape lovers mix it up, old-spool (25 October 2010) < http://www.abc.net.au/news/stories/2010/10/25/3047591.htm?section=justin > at 26 October 2010

Larrikin Music Publishing Pty Ltd v EMI Songs Australia Pty Limited (No 2) [2010] FCA 698 (6 July 2010)

UPDATED: In this decision Jacobson J was required to assess the copyright liability of the (respondents) composers of the song ‘Downunder’ for the sampling of the song ‘Kookaburra Sits in the Old Gum Tree’. Having held in February this year that a substantial part of the song was sampled, the court in this instance was required to assess the damages payable under the Trade Practices Act to the applicants.

Drawing from Ludlow Music Inc v Williams (No 2) [2002] EWHC 638 (Ch) (“Ludlow Music”) at [38] - [48] Jacobson held the relevant principles to be, at [29] – [34]:

First, the respondents being wrongdoers, damages should be liberally assessed but the object is to compensate the applicant, not to punish the respondents. Second, it is common practice in the music industry for the owner of the copyright in a work to grant a licence to a person who seeks to use part of the original work in a derivative work. In those instances the owner of the copyright will grant a licence in return for a share of the copyright (or a share of the income) in or from the derivative work. Third, when an infringer uses the copyright work without a licence, the measure of the damages it must pay will be the sum which it would have paid by way of royalty if, instead of acting “illegally”, it had acted legally. Fourth, where (as in the present case) there is no “normal” rate of royalty or licence fee, evidence may be adduced of practice in the industry including expert evidence of factors which may guide the court in the determination of the applicable rate. Evidence of that type will be general and hypothetical and it will be a matter for the court to determine the weight to be given to it. Fifth, where (as in the present case) some form of royalty or profit share is appropriate, the basis for the assessment is a transaction between a willing licensor and a willing licensee. The assessment has to be made upon all the relevant evidence which may include evidence of rates agreed in other similar or “comparable transactions”. Sixth, the process is one of judicial estimation. Mathematical precision is not attainable. It would appear that if the court is to err, it should do so on the side of generosity to an applicant.

Holding that there had been a continuing misrepresentation as to the copyright ownership of the song to APRA and AMCOS he cautioned against using other samples in songs and their respective royalty licence rates as guidelines in cases such as these at [179] – [181]:

The evidence of “comparable” samples is to be approached with caution. Each sample is different and the factors which informed the outcome of the negotiations in the various samples referred to in the evidence are not fully available. The process is quite different from that which underlies the well established principle applicable to the assessment of the value of land or items of property. There, the basis of the value is the price that a willing purchaser would pay to a willing but not anxious vendor and is determined upon the footing that there are articles of the same kind which are the subject of frequent sale and purchase: Spencer v Commonwealth (1907) 5 CLR 418 at 431, 441. Nevertheless, insofar as the “comparables” adduced in evidence can be given weight as indicators of the outcome of the hypothetical bargain, they point to a low percentage figure.

Overall Jacobson held that the 2 bars of ‘Kookaburra Sits in the Old Gum Tree’ were a substantial part of that song, however in determining damages, the question was predominantly based on what qualitative contribution had been made by that song to 'Downunder’. ‘Downunder’ was not heavily reliant on the sample as part of its song with Jacobson referring to a range of other musical elements and qualities which gave the song its wider popularity. Here he held at [216] to [220]:

Although the quotation from Kookaburra in the 1981 recording is, in my view, sufficient to constitute an infringement of copyright, other factors are to be taken into account in assessing the percentage interest payable in a hypothetical licensing bargain. The most obvious factor is the difficulty in detecting the similarity between the flute riff and the bars from Kookaburra. A further strong indicator of a low percentage is to be found in a qualitative and quantitative consideration of Kookaburra’s contribution to Down Under, looked at a whole. The qualitative and quantitative comparison which I am required to undertake in this part of the case is different from that which was the subject of the February Reasons. There, the enquiry was limited to the bars of Kookaburra that are reproduced in the flute riff. Here, the comparison involves a weighing of the significance of the bars of Kookaburra to the overall musical qualities of Down Under. Whilst it is true that the commercial success of Down Under in 2002 may have given the copyright owner of Kookaburra an opportunity to capitalise upon its statutory monopoly, that is outweighed by the other factors to which I have referred. The process of determining the percentage figure to be paid is one of judicial estimation. Taking the most generous approach that is open to me having regard to the figures put to me by the parties, I estimate the figure at 5%...

Further Reading
Larrikin Music Publishing Pty Ltd v EMI Songs Australia Pty Limited [2010] FCA 29 (4 February 2010) <http://www.austlii.edu.au/au/cases/cth/FCA/2010/29.html > at 6 July 2010

Larrikin Music Publishing Pty Ltd v EMI Songs Australia Pty Limited (No 2) [2010] FCA 698 (6 July 2010) <http://www.austlii.edu.au/au/cases/cth/FCA/2010/698.html > at 6 July 2010)

Wikipedia, Kookaburra with Food (Image) (last updated 23 June 2010) <http://en.wikipedia.org/wiki/Kookaburra> at 6 July 2010

_____________
(11.30am): According to ABC Youth Radio Station, Triple J, the copyright owners of the Australian band Men at Work's song 'Downunder' have been held liable for copyright infringement of the song 'Kookaburra Sits in the Old Gum Tree' and have been ordered to pay 5% of royalties backdated to 2002. As soon as the judgement has been published online I will write more about this decision and any obiter dictum with respect to sampling under Australian copyright law.

Further Reading
OpenContentAustraliaResearchReview, Recent Developments (6 August 2009) <http://ocarr.blogspot.com/2009/08/recent-developments.html> at 6 July 2010