Fair Use Review in Australia

Jaka writes "The Australian Attorney-General's Department is conducting a review on exceptions to copyright law. Currently Australia allows 4 specific 'fair dealing' exceptions (research or study; criticism or review; reporting of news; and professional advice given by a legal practitioner, patent attorney, or trade marks attorney - it's technically illegal here to convert songs from CD to MP3, or to record a TV show unless it's a live broadcast). They have published a request for public submissions (.pdf or .doc) on whether to expand this list, or adopt an open-ended 'fair use' policy similar to that used in the US and allow the courts to decide if any particular use of copyrighted material should be excepted from copyright law. As we're getting our own version of the DMCA thanks to the Australia-US Free Trade Agreement, if something isn't done to broaden copyright exceptions we'll end up with even more draconian copyright restrictions than the US."

Comments

Courts

[Turn-X Alphonse]

We shouldn't need the courts. The law should be black and white. "you can do this" and "you cannot do this". When you leave grey areas you get idiots like the RIAA exploiting them to make profit.

Re:Courts

[Mrs. Grundy]

The law cannot be black and white--this is why we have courts. Imagine if lawmakers had taken your wisdom in creating copyright laws back in 1970--made it black and white. They would have made a set of laws that make no sense after the technological change that has occurred in the last 35 years. The law needs to be flexible so it can remain pertinent and applicable in a changing world. The law should paint broad principles and be clear enough so the principle behind the law--the idea--is well communicated, but flexible enough that it can cope with changing times. Of course this is a real challenge--maybe THE challenge for lawmakers. It was the same challenge faced by the original writers of the US constitution in the 18th century which is why the constitution is quite vague about specifics (thank goodness they didn't make everything black and white to reflect 18th century norms) and allows for amendments.

Re:Courts

[Unordained]

I think there's a room enough for making the law applicable despite changes in technology and culture without having to resort to laws which are defined by the courts as you go.

Justice Antonin Scalia gave a talk recently(-ish) about the concept of the "living constitution", mostly to point out that although the idea sounds good when you consider badly-written laws ... it's always dangerous. Anyone could bend the law any direction; although you may think it's helpful to you the one time you get the law bent the way you want, it'll come back to bite you in the bum when someone uses that same concept against you. In his opinion, we should all fight against the "living constitution" (and by extension, any philosophy that says that laws need not be precisely worded, with clear intent) and instead rely on passing laws that are to our advantage, black-on-white.

A flexible law is not a gray law. "Do not murder", for example, is clear -- yet it doesn't come with a laundry list of possible ways of committing murder that has to be revised every time a new weapon is made or a new trick learned. Perhaps it needs a definition of murder (example: actively and intentionally causing the death of a human who doesn't consent to it) but just because it's simple doesn't mean it's gray. From that simple law, you can probably deduce whether or not something you're about to do is legal.

On the other hand, laws of the form "this is legal if the court says it is" means that a citizen can no longer be reasonably expected to know the law -- which comes dangerously close to exhonerating the citizen from having to know the law at all, or ever be liable for violations of said law.

Geek-ish: laws should be well-written open-source code. Everyone should have access to the code, and as such, can read it, understand it, and know what will happen given a particular set of input (actions.) If, on the other hand, the law depends on sending requests off to a black-box for which the code is unknown, the result might as well be random.

Re:Courts

[ramblin billy]

"Do not murder', for example, is clear -- yet it doesn't come with a laundry list of possible ways of committing murder that has to be revised every time a new weapon is made or a new trick learned. Perhaps it needs a definition of murder (example: actively and intentionally causing the death of a human who doesn't consent to it) but just because it's simple doesn't mean it's gray. From that simple law, you can probably deduce whether or not something you're about to do is legal."

The reason there's no new laundry list is because we have OLD laundry lists we've been refining for centuries. The concepts of killing in time of war and killing in self defense are two prime examples. We have all sorts of highly defined special case laws covering murder. Many of these definitions change over time. As we evolve as a species our definitions become more specific and require a higher degree of individual responsibility. Killing an armed enemy in active combat is OK, killing an unarmed enemy who is surrendering is murder. Bombing a city and accidently killing civilians is OK, walking into a city and shooting down civilians on purpose is murder. If you're intentionally out to teach someone a lesson by beating but not killing them, and they accidently die, it's murder. In the U.S., if someone dies, for any reason, in the commission of a felony, we consider it murder. Bombing the enemy from the sky is heroic warfare, bombing the enemy with a roadside device is murderous terrorism. Each situation is different, yet they all consist of taking a life without consent.

What is it if you deny your child medical treatment that violates your religious beliefs and she dies? Is it murder? What is it if you make laws banning stem cell research due to religious beliefs, have you murdered those who could have been saved by stem cell therapy? It is murder to pay farmers to not grow food when people in the world are starving? It's definitely incredibly stupid. In some future society it very well may be considered murder. What about manslaughter? Is the victim less dead due to accident than intent? You see there are many different laws concerning murder. In most of the world stoning a woman to death for adultery would be murder, but not everywhere.

My point is that the law MUST be a living thing - not so much because of the changes in technology - but because of the changes in the human heart. Not so long ago if a man trespassed you were within your right to kill him. If he threatened you with his fists you could kill him. Now we have the concept of proportional response. Would a reasonable man in that situation respond with that level of violence? The definition of a reasonable man is determined by the courts in each case. A reasonable man in 12th century France resembles a modern citizen of Atlanta as a mammoth resembles an elephant. Our concept of 'reasonable' and indeed, 'man', has changed. Killing a slave used to be an offense against property. Today we find that idea horrible.

It is true that laws must bear a certain gravity and stability. Changing laws on the whim of current notion is as bad as clinging to laws we have outgrown. Some laws are designed to make us better - laws bestowing freedoms and rights; some laws are designed to confound the dark side of human nature - laws condemning tyranny and violence. The Rule of Law, like every human thing is flawed and incomplete, it is also the supreme example of the finest qualities of the human character. When we speak of laws we must do our upmost to see clearly and speak truly. The law must remain alive in the human heart, for when it dies, so do we.

billy - of course there's something to be said for civil disobedience

Its a matter of nature

[gotpaint32]

DMCA laws as much as we hate them are going to be here for a good long time. Until someone abolishes for-profit content, it's silly to say the DMCA is purely evil (flamebait MUAHAHA) which it isn't, well not as much as most slashdotters believe. Furthemore the hammer of the DMCA rarely falls on joe user, unless he was using napster (but then again he was stealing IP no matter which way you look at it it was wrong), so continue to tape your tv programs, rip ur CDs, download Pr0n. Until they start sticking DRMs on everything (which then u should boycott the product) and busting heads, sit pretty. The laws are there primarily for the big boys, the major piracy groups and would be piraters alike...

Re:Its a matter of nature

[SilverspurG]

but then again he was stealing IP no matter which way you look at it it was wrong

On the contrary. Joe User is receiving a perfectly legal copy from someone who is sharing it with him. Joe User is not stealing anything. That person who is sharing the copy, in most cases, legally purchased a copy. All whimsical arguments about licensing aside, once a person legally purchases a product and is in possession of it then it is perfectly legal for them to share it with any and everyone.

The US military solves the IP problem in a practical way: If they don't want you to share something they don't share it with you. It's that simple. Military minds are very practical when it comes to solving the real problem as opposed to running around in endless circles debating the legal definition of intellectual property.

If the media industry feels their profit margin isn't high enough they're free to jack up the price of each copy sold. They're even free to come up with customized hardware players that work on an encrypted data format (HA! See how far THAT business model takes them!). This business about pretending they still own something after they've legally sold it is ridiculous. This business about making federal felons out of legitimate customers after the point of sale is equally ridiculous.

Face reality. They legally sold it and the owner of the new copy is legally sharing it. This artificial creation of licensing has got to stop. There are two types of transactions in reality: full sale and rental. If I rent something then I fully expect to give it back. If I buy something, however, then the seller knows at the point of sale that I own it once they've accepted money for it.

I have over 400 legally purchased CDs and fewer than 30 mp3s which I don't legally own the original CD for. I don't share my material on the public network and I don't use common p2p sharing software (Kazaa, napster, whathaveyou) but I am sick and tired of the arguments, dischord, and strife being caused by people who can't cope with the concept of "It's bought and sold... Let go!"

Re:Its a matter of nature

[SilverspurG]

they are selling you intellectual property

Whimsical conjecture. As near as I can tell using the standard five senses that nature endows (nearly) everyone with, they sold to me a physical object. It is well within my technological capabilities to reproduce this object, or something very near to it with the same functionality. They know this before, during, and after the point of sale. If they don't take this into proper consideration then they are poor businessmen and I do not want my taxpayer dollars supporting such a blatant oversight. It's not like they're being blindsided out of the blue by aliens with magical technology. Every other business in the world must carefully consider its supply lines, its customer base, its distribution routes and it is the responsibility of the business owner to ensure that these considerations are properly accounted for before selling the product. If not, it is still the responsibility of the business owner to modify their own processes accordingly to adjust their profit margin.

It is not my responsibility, as a taxpayer, to support a business which sticks its head in the sand about the viability of its product and the availability of technologies which affect its product. Did the makers of leather armor try to take the makers of the longbow to court? No. They made better plate armor. Did the makers of the ancient wooden galleons try to take the makers of steamships to court? Maybe, if they were caught up in ridiculous patent disputes but, in the end, it is their responsibility to make a better product.

Stick with reality.

The physical medium of the CD just happen to be a convienent vessel to transfer the information

More whimsical conjecture. The reality is they sold to me an object. I own that object. They should quit trying to pretend they still own that object.

You have to think of IP rights as a concert ticket

No, I don't... but go on.

With the ticket you can listen to the music at the concert, you can even give the ticket to a friend to go in you place, but should you really expect that you and your hundred buddys get in the door because you made a bunch of photocopys of the orginal ticket?

Did you even read what I originally wrote? This metaphor is the same as hardware players with hardware encryption. The door bouncers at the concert venue are the microchips checking to ensure that the ticket isn't a photocopy. I said that the media industry is free to attempt to implement this. See how far that business model gets them when we have to buy a new player every few years at $200 each.

but one physical cd = one rightful owner

Absolutely. One physical toothpick, one tissue, one sheet of toilet paper... until someone makes more.

There's no secret in the world that the everyday consumer has the technological capability to make more. That issue was brought up at the time CD writers were put on the market and the appropriate compensatory tax was added to the cost of blank CDs (supposedly).

Get over it. Face reality.

current restrictions

[venicebeach]

it's technically illegal here to convert songs from CD to MP3, or to record a TV show unless it's a live broadcast)

Can't you just say you were "studying" the recording? Or you were preparing a critique? The exceptions sound rather broad, are they enforced at all?

Re:Australia?

[Kinky Bass Junk]

Well, until we get fair use laws, yes. I don't think these laws will really change much in the way of every-day life down here; nobody really knows that we don't have fair use laws. It's ironic how paranoid the schools are over teaching good, legal-minded students, when most students go home to listen to pirated music on their pirated version of Windows XP. Nobody knows.

Fair use for Study

[shitdrummer]

Hmmm, if review or study is an acceptable fair use of copyrighted music, can I as a musician copy any and all the music I like for the purpose of studying how to be a more successful professional musician?

Shitdrummer.

It would be fair if we could just buy directly

[mgv]

I think the whole situation with the FTA would be alot more fair if we could just buy things directly from the US. At least we could access the benefits of a large free market.

For example, we can't buy songs from the Apple USA store. The Australian price for a song was about $1.69 Australian according to some sources when the Austrialian apple store went online briefly before being pulled. At that price its way more than the US resident pays, even allowing for currency conversion rates its no more than $1.39 allowing for a profit on currency conversion.

And all the stuff about australia being a small market, etc, really doesn't wash to much when the website is already developed, etc, by apple. Particularly as Apple doesn't try to make much of a profit on all of this, the money all goes to the music industry. The majority of the songs will be common with the US site and shouldn't cost a cent more than it does in the US.

Just another example of greed by the **AA.

Michael

Huh?

[Bigthecat]

From the article comment:

"As we're getting our own version of the DMCA thanks to the Australia-US Free Trade Agreement"

For some reason here in Australia people online have suddenly made a big hoo-haa about the Free Trade Agreement bringing the DMCA here and it makes me sit back and wonder where they were 5-6 years ago since it is already here and has been in effect for quite some time: Copyright Amendment (Digital Agenda) Act 2000.

Not too long ago it was used in the Sony v Stevens case (and succeeded in the appeal) to make PS2 modchip sales illegal in Australia.

It's a bit late to be worrying about the affect of the DMCA in Australia now: We've had it for five years.

Re:If it's such a problem...

[asaul]

Sure - and 49% of Americans didnt want Bush either.

Its called democracy, and the problem with it is unless more than 50% of people think like you, you are probably going to be disappointed.

Also I doubt that a majority of voters were considering copyright issues when they cast the ballot, especially when most propaganda/lies/election material focused on interest rates, Iraq and some song and dance about a first time challenger.

Re: Complain more.

[EvilCabbage]

A while ago now there was talk of a forcing ISP's into a 'net filtering scheme.

I got vocal with my local members of parliment, then members outside of my area but within my state, then federal.

On my own, I don't know what difference it made, but logic came out and it got smacked down. Let's imagine there were a few thousand other people like me bothering them at every level, explaining as gently as possibly why it was an insane idea.

Make yourself heard as often and as loudly as possible. You will eventually wear the bastards down.

Re:Australia?

[OzPeter]

To quote a comedian I once heard (whose name escapes me, but I know he was from the US of A)

"I'd rather live in a country founded by criminals, than one founded by puritans."

Getting a bit off topic

I always laugh at what you can't do in the USA because of wierd laws designed to protect you from yourself, compared to what we can do here in Oz.

I remember back in about '76 or '77 when we had full frontal female nudity on prime time free to air network TV. Yet in the US you made so much hoopla out of Janet Jackson's tit that it seemed like you thought it was the end of the world.

And before you write me off as some whinging foreigner, I spend a lot of time in the US and am getting married there in August. I know that individually you can be nice people, but collectively .. that leaves a lot to be debated.

No, it isn't

[Anonymous Coward]

The whole point of the DMCA is that it isn't natural, on the contrary, its whole purpose is to restrict a "natural" property of digital content, namely zero marginal costs of distribution.
Now you may of course argue that such restrictions are necessary, but don't simply claim its natural, because that simply false.

"Until someone abolishes for-profit content, it's silly to say the DMCA is purely evil (flamebait MUAHAHA) which it isn't, well not as much as most slashdotters believe."
Ah, I see you have learned your /. ways, claim something without providing an argument for it.

"Furthemore the hammer of the DMCA rarely falls on joe user..."
That's simply false. That they are clearly targeting joe user is one of the main problems a lot of people see with things like the DMCA.

"but then again he was stealing IP no matter which way you look at it it was wrong"
Nope, he was breaking copyright, not stealing anything, least of all intellectual property, whatever this dumb phrase is supposed to mean.

"The laws are there primarily for the big boys, the major piracy groups and would be piraters alike"
Again, this is simply wrong. First off all, laws are there for everyone, and further, looking at what the RIAA does your claim simply isn't support by facts.

Re:Same thing in NZ - Egad!!!!

[grolschie]

From Judith Tizard's Amendments Proposed for Copyright Act:

"Prohibit the supply or manufacture of devices, means or information that circumvent technological protection measures, where circumvention could enable infringement of any of the copyright owner's exclusive rights, and provide criminal penalties for large scale commercial dealing in circumvention devices, means or information; "

ISPs are commericial enterprises that deal in large scale supply of information/data. Bye bye Internet. ;-)

RIAA/MPAA hates the Internet FULL STOP!

[pandrijeczko]

Let's make no bones about it, the Internet and the Web have allowed us all to become a lot better informed about any products that we buy - this means that before we buy DVDs, CDs, etc., it's usually not that difficult to find a review of the product first.

Go back 10 years and I myself was buying many more CDs and (then) VHS videos purely because the type of stuff I was buying wasn't necessarily reviewed in a magazine somewhere and I took a lot of chances by just buying many of these products - most of the time I was severely disappointed.

Nowadays, I can just fire up Google and read a review...

The fact is that both the music & movie industry now sell a higher proportion of low quality sub-standard products that they push through advertising & hype. However, with a much more informed consumer base, it's more difficult to sell those products successfully.

So let's be clear about this, the issue is not about "fair use", it's actually about the MPAA and RIAA stopping the flow of information across consumers because bad "word of mouth" reviews do more harm to sales than anything else.

Re:In Summary.

[ajs318]

I have to disagree with you there. I think it's entirely the job of the courts to determine what does and what does not constitute not fair dealing.

Parliament -- write down the laws of the land
Courts -- decide whether or not laws were broken and determine appropriate punishment
Police -- catch people who break the laws

This system has built-in checks and balances. It's certainly not perfect, but it has a less terrible worst-case scenario than any other arrangement.

Re:If it's such a problem...

[drsmithy]

It was complicated, but here's a summary:

You misspelled "massive, partisan over-simplification". HTH.

Sadly, redneck politics works so long as you can point to a minority that people don't think much of [...]

Indeed, because the Loony Left's alternative of just letting everyone and anyone in with no immigration control at all is _so_ realistic.

[...] - and locking them up for years on a flimsy pretext wins votes, even if you accidentally lock up a blond haired blue eyed locally born Qantas hostess as an illegal immigrant for months by mistake, or deport one of your own citizens by mistake!

Cornelia Rau was German-born (not "locally born"), carried no identification, only tried to communicate in German, identified herself to authorities as a German citizen, used several false names and IIRC even claimed she was in the country illegally. While I don't condone what happened to her, and I welcome any procedures that streamline and improve the processes dealing with illegal immigrants, when you look at it with some semblence of objectivity, the chain of events that unfolded *is* rather understandable.

Of course, if the Government had one of those big, interconnected databases with every citizen in it that authorities all over the country had access to, the situation probably wouldn't have happened...

I had a flatmate who voted for the party that were going to put him out of a job (abolish his government department), and he knew it - popularism is powerful.

Or maybe he just thought they were the best pick of a bad bunch (wouldn't be saying much).

Free trade agreements

[ChaosCube]

"As we're getting our own version of the DMCA thanks to the Australia-US Free Trade Agreement..."

The more I read about these so-called "free trade" agreements, the more I have to laugh. Take this quote for example. What about a DMCA-like provision is considered free? It seems to me that these contractual clauses are just a world wide extention of US policy. Adopt our laws, or we close down trade channels, etc, etc. What a silly way to do business...

Re:Actually...

[AmericanInKiev]

nobody's arguing the puritans left england as the persecuted - what it objectionable is the way they so quickly became the persecutors.

Having Killed the Indians, they used the Bible to justify slavery, and continue in that vien to seek out and destroy weak and underrepresented populations.

The Baptist are now telling people how to vote - or be ex-communicated.

so their point in coming here wasn't to "Avoid" persecution. It was to re-establish persecution on their own terms - and this is what is objectionable.

AIK

Licensing vs. DRM

[Anonymous Brave Guy]

The big clash that was always going to happen is between DRM and anti-circumvention laws (an absolute requirement for the distributors to be able to prevent copying) and fair use rights (an absolute requirement that the distributors cannot prevent copying in certain cases). Note that the latter is very different to fair use exemptions (which is all you currently have in most jurisdictions, if you have anything at all) because the exemption says "If you can copy it, then the act is not illegal", while the right says "The distributor must not prevent you from copying it".

There isn't really much scope for compromise here. The distributor can never have rock solid controls on copying anyway (it's technologically implausible) and even if they did, they'd then have to undertake to provide copies as the law requires, such as on any new media format, or for backup (which is financially implausible and not future-proof), so that idea isn't really worth pursuing, legally or technologically.

Immovable object, meet irresistable force.

Re:Australia?

[Anonymous Coward]

That's because in the States if you sit in the front seat, the taxi driver thinks you are going to rob him.

In Australia, if you don't sit in the front the driver thinks you are being all arrogant and want to be chauffeured, like some toffee nose.

Different cultures