OZ Copywrong Bill
p2pnet.net News:- It’s funny how things change you….
Six months ago on the issue of DRM and DMCA type legislation I’d have argued black and blue that there was no scope to consider good points of this type of legislation, that there was simply no place for DRM in this world, that as an anti-consumer, anti-cultural and anti-internet technology that it was one of the most destructible constructs within cyberspace, with its real space equivalent being nothing short of nuclear weapons.
Don’t worry, that’s still my position, but what I’ve come to realise is that in practise, it’s not as simple as just arguing for complete abolition, even if that’s the preferable course of action.
Zittrain wrote in his generativity paper earlier this year that in order to minimise negative impacts, one must be willing to engage in the conflict – that’s to say, just standing on the side lines being disgusted is a good thing, but it’s not necessarily the thing that’s going to save the Internet/Culture.
So as I write an analysis of Australia’s changes to the Copyright Act, it occurs to me that maybe there are some parts of this Bill that are slightly less evil than the DMCA, and that perhaps this can be considered a good thing, even if only marginally.
So instead of asking why do we have DRM provisions in our Copyright Act at all, I’m going to ask: has the Australian Government done everything it can to minimise the negative impacts?
Section 116AK provides the exceptions to circumvent technological protection measures and s132APA provides similar provisions for the exceptions to circumvent access control technological protection measures. Proposed amendments to the regulations also contain additional grounds on which DRM can be circumvented. All changes in relation to DRM will come into effect from 01/01/07 if the Bill is passed in this form.
The good parts include the statement that the law does not apply where permission has been given to circumvent (should we be thankful for that?), that the provisions don’t include market region segmentation (s 10), that DRM can be broken for law enforcement and security purposes (domestic, civil and national) as well as for the purposes of online privacy – exceptions Ed Felton was arguing for in the USA earlier this year. In addition circumvention is permitted for broken or obsolete DRM .
The average parts include interoperability provisions, that while in theory are good, in practice still pose ramifications – those engaged in open source projects do not have permission to share a copy of a proprietary program raising development costs and barriers. I much prefer what the French were trying to do earlier this year.
Encryption researchers are obliged to seek permission prior to circumventing DRM – permission need not necessarily be forthcoming. But they need to make the effort. This on the face of it appears benign, but in practice, it could lead to the undermining of research efforts and increased lawsuits against them, although s202A (which pertains to groundless threats) could be some comfort if they make it to court. But the point is: they shouldn’t even be in the firing line of litigation in the first place, and nor should they have to disclose what they’re researching unless they want to.
Libraries and educational institutions are allowed to break copy protection for the purpose of making acquisition decisions, or for the purposes of their normal lawful functions, making no allowance for the need to preserve open access to culture for future generations.
The bad parts of the Bill include that the burden of proof is on the defendant.
This means that anyone subject to a circumvention charge/lawsuit is essentially guilty until they prove themselves innocent. The introduction of penalties against the person doing the circumvention was a direct result of the Free Trade negotiations – the circumventor is not liable at all under the current provisions.
Furthermore, the penalties are harsh with the maximum penalty of five years imprisonment (and/or a massive fine) for an indictable offence, two years imprisonment for a summary offence (not quite so massive fine), and the added bonus of a strict liability provision that allows for the issuing of an on the spot penalty notice (lesser fine).
While the regulations allow for further circumvention grounds to be developed, it’s worth noting that the Minister has four years to make a recommendation to the Governor General from the date an application is made; so if we make a request for circumvention for fair dealing purposes now we might get it in 2010 …
Other bad parts are the omissions:
- There’s no legislative provision protecting the public domain.
- There’s no blanket fair dealing provision (time shifting/format shifting/back up copies).
- There are no specific provisions (arguably more appropriate for Fair Trading/Trade Practices legislation) for the labelling of goods to ensure consumer awareness.
- There are no provisions excluding Government products/information.
Of course, manufacturing and supply of a device or service for any purpose other than those listed above is illegal (ss 116AL, 116AM, 132APB, 132APC)
So in considering the question, has the Australian Government done all it can to minimise the negative impacts?
The answer has to be a resounding, No!
Other changes to the Australian Copyright Act, which were largely marketed as the allowances that were being made in exchange for the DRM provisions, also fall well short of the mark, and these will commence immediately on the passing of the Bill.
Changes to the law in relation to education see the restriction of fair dealing for research or study with a stricter adherence to the 10% copying rule – so, as Kim Weatherall points out, a person can make a full copy of a book for personal purposes, but can’t make more than 10% of a copy for research purposes?
The wording in relation to the time shifting provisions allowing TV and radio broadcasts to be recorded (s 111) has been altered from only permitting one viewing, to permitting viewing at a ‘more convenient time’ which will allow you to legally rewind and replay should you be interrupted or miss something, but which still is demonstrably out of step with the everyday practices of Australians.
Every family in Australia has recorded television shows and replayed them repeatedly. The narrowness of these provisions does nothing to alleviate the fact that most Australians will continue to break the law and there will no compensation for copyright holders.
Much the same can be said for the format shifting provisions, particularly those that relate to music (s 109A) which allow you to rip a CD to put on your mp3 player but insist that you then delete the temporary copy from your computer – you cannot legally rip the song on to your lap top and have it on your mp3 player at the same time.
We live forever envious of the private copying levy in Canada and fair use in the United States.
Libraries and cultural institutions are allowed to infringe copyright as are those assisting people with disabilities or those engaged in educational instruction, parody or satire… BUT…. there are conditions which make the whole operation of the scheme messy – it must be a special case which does not conflict with the normal exploitation of the work and cannot prejudice the legitimate interests of the copyright holder. How exactly does one apply these provisions to parody and satire? Why should they have to when there are no equivalent conditions placed on criticism and review?
Finally, the move that concerns me a lot is the increased penalties for the distribution of unauthorised sound recordings (s 248QE) – one has to ask, Why do they feel the need to increase these?
To date there have not been wide spread file sharing lawsuits in Australia and it would be an absolute travesty if they were to start.
But if they were to take this course of action, how convenient to have penalties so high as to make settlements look like a good option… Grrrrrrrr.
So much for minimising negative impacts.
The Bill was introduced to Parliament on Wednesday but its passage may be slightly delayed as it goes before the Senate Standing Committee on Legal and Constitutional Affairs that will report on it around the 10 November 2006.
For anyone willing to make a submission to the Senate Committee on the Bill (please do !!) the guidelines can be found HERE.
Submissions must be received by 30 October 2006.
For more see:
Weatherall’s Law: IP in the land of OZ (and more), An Analysis of the Copyright Exceptions Exposure Draft (5 October 2006) http://weatherall.blogspot.com/2006_10_01_weatherall_archive.html at 10 October 2006
Michael Geist, 30 Days of DRM (18 September 2006) http://www.michaelgeist.ca/daysofdrm at 10 October 2006
p2pnet.net, Australia’s draft DRM Changes: 11 (21 September 2006) http://p2pnet.net/story/9914 at 26 September 2006
Freedom To Tinker, RIAA Says Future DRM Might “Threaten Critical Infrastructure and Potentially Endanger Lives”(8 March 2006) http://www.freedom-to-tinker.com/?p=984 at 16 October 2006
Freedom to Tinker, Bernard Lang Reports on the Proposed French DRM Law (28 March 2006) http://www.freedom-to-tinker.com/?p=997 at 16 October 2006
Jonathan Zittrain, The Generative Internet (2006) 119 Harvard Law Review 1974 http://www.harvardlawreview.org/issues/119/may06/zittrain.pdf at 16 October 2006 (this paper is more about the future of the internet and reactions to security vulnerabilities; but I like the notion that one must engage to prevent bad things from happening)
Sally Hawkins – p2pnet, Australia
[Hawkins is a former musician and songwriter who decided to study law after doing a course in Music Business Management in 1991; she's worked for various departments in both Federal and State Australian Government, holds a Bachelors Degree in Legal and Justice Studies (Criminal Law), a Bachelor of Laws (Honours) and is currently a postgraduate student with Southern Cross University writing a thesis on Copyright Law/P2P File Sharing.]
p2pnet newsfeeds for your site.
rss feed: http://p2pnet.net/p2p.rss
Mobile – http://p2pnet.net/index-wml.php
October 20th, 2006 at 11:48 pm
People needn’t worry about the circumvention provisions. It misses the very point of where the online distribution businesses, including the traditonal entertainment industries’, are heading. Clearly having these provisions included has mad some former public servant parading as a consultant to the entertainment companies quite wealthy.
Ultimately however the real concern here is that the shaping of the internet seems to have become the province of lawyers. Let us remember that getting technical advice from a lawyer is like getting medical advice from your architect!