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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."
Just about everyone breaks the copywrite law here at the moment. Even the Prime Ministers wife tapes The Bill onto VHS and breaks the law doing so. The trouble is that if they actually change the law they might start enforcing it.
I'd be happy to see Brittney Spears CD's at $40/copy with unbreakable DRM, because that's the best chance there is for better bands to get some exposure - by offering works with either more reasonably licenses or more reasonable prices - hopefully both.
It's good for business and if it turns out that in 30 or 40 years from now we can replace all our business with some magical positive return system then we can switch to it then. But in the mean time we're finding that we have mostly knowledge as our primary assets and pragmatically it is being protected through these treaties.
Take that with a grain of salt, it's just my off the cuff reaction.
Shh.
Maybe you can use this, or post your own Australian version, modifying it to what applies in your laws being proposed, and write your Government Representative to voice your concerns at the loss of personal rights.
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Please write your MP on this matter. Use my letter below if you don't want to write your own.
Send your letter for free (no postage necessary), to your MP at the following address:
[your MP's name] M.P.
House of Commons
Ottawa ON K1A 0A6
Find their email address, but write by paper mail too. http://www.parl.gc.ca/information/about/people/ho
Dear Mr. Breitkreuz
To summarize the issues in this letter:
1. Internet Service Providers should not be required to keep extensive logs of private and legal online communications.
2. The government must not stop Canadian citizens from making personal-use copies of their legally purchased software, music, and movie media.
Background:
http://pch.gc.ca/progs/ac-ca/progs/pda-cpb/reform
Here is the reasoning:
The purpose of the Copyright Act is to support creativity and innovation in the arts and culture. To design a new Act on the failed and draconian Digital Millenium Copyright Act of the United States of America, would be a disaster for Canadian culture, and innovation. Also our court system could become clogged with law abiding citizens who make personal use copies of their music, software, and movie collections for no personal financial gain. An implementation of the proposed changes to the Copyright Act would unleash another "Gun Registry boondoggle" onto the Canadian people - creating criminals out of law abiding citizens at the expense of Canadian taxpayers.
Internet Service Providers like Sasktel should not be made to keep extensive client usage logs for possible future prosecution by various copyright-based industries. I don't want to pay for that system to be put into effect, and I don't think most people do. The phone companies are not forced by the government to record the content of phone conversations, only police can do that with a proper warrant. ISP logs are going to be equivalent to phone-taps, and that's a violation of my privacy. It's doing the job of the police, and is for the sole benefit of an industry basing its profits on an outdated business model that is no longer realistic for the Canadian government to protect.
It is completely unfair to be paying a levy to artists organizations for purchasing blank CD media to make home-use private copies of legal CD music, and now to also be unable to legally copy the music I've paid for off of Digital Rights Managed CDs. If copying CD music is going to be illegal, why is the government collecting money from the product for an illegal activity? I'm satisfied that the current levy is helping to compensate artists from illegitimate copying, and no new law is required to prevent me and other people from making sensible backups of our legal music, software, and movie collections.
Your representation in the House of Commons on this matter is greatly appreciated by me, and other supporters of personal liberty and innovation in the arts. I look forward to hearing from you.
Sincerely,
my name
Saskboy's blog is good. 9 out of 10 dentists agree.
For example, we can't buy songs from the Apple USA store.
Have you tried using a proxy server located in the US? Tor might fit the bill, as I'm sure many of their end-of-the-line proxies are located in the US.
"The newly born animals are then whisked off for a quick run through a giant baking oven." --heard on Food Network
Why not give people the right to format shift, the review panel says, we're all doing it anyway, and everyone assumes it's legal, not to mention that the recording industry is not out of pocket if someone format shifts.
Also not surprisingly, RIANZ (NZ's RIAA) is opposing it like crazy because of some nonsensical argument about... well... I don't know... the end of the world occurring if someone makes a copy of a CD they already own for personal use.
Read the government's web pages about it here. The relevant part is under "New Exceptions".
Part of the free trade agreement was the pushing through by the US drug companies to stop Australian government subsidies of prescriptiion drugs to our own citizens. The Prescription Benefits Scheme (PBS) is a part of the larger Medicare scheme that all Australians contribute to via their taxes. It is effectively getting the government to make a large co-payement on drugs, so that unfortunate citizens don't get driven broke by huge drug costs iin order to treat afflictations that did not choose to suffer. That co-payment is then amortised across the whole country.
But the US drug industry cried "unfair to us", and got the FDA to screw up our internal systems for the sake of their profits.
As a person who has relied on specialised drugs in the past, this annoys the hell out of me, especially when seeing people I know in teh US suffer from the same affliction but not be able to afford the drugs. So I can see trouble looming ahead for us.
But what really takes the cake is the Bush recently announced his own PBS scheme for seniors in the US. If it is such a good idea, why did he allow the FDA to be manipulated so that it was sqaushed in Oz?
Free trade agreement? I think not.
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You have to reexamine your own sale or rental analogy. Reality is they aren't selling you goods, they are selling you intellectual property, one that inherently hinges on rights regardless of medium. The physical medium of the CD just happen to be a convienent vessel to transfer the information produced so you can enjoy the right to listen to said CD, DVD, WMA, whatever.
You have to think of IP rights as a concert ticket. 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? No, of course not. Rights certainly don't transfer like that, the world would be a chaotic place if it did.
So yes, you are perfectly within your rights to share your goods; lend your friend that shiny britney cd of yours, but one physical cd = one rightful owner. The DMCA may be unagreeable for various reasons but its not as draconian as you make it out to be.
Nuclear war would really set back cable. - Ted Turner
Our glorious Australian copyright law gives us the right to make backups. Yep! Even if it's against the EULA.
:-(
But...
That's just the executable. No sound, text, or images can be backed up.
Politicians and public servants are paid to make up ridiculous inconsistent laws like that.
Sux to be us.
BEGIN rant
We can't get everything that is Region 1 coded in Region 4. Hacking your player is probably illegal.
One DVD store worker actually recommended I download the stuff I was looking for because it is never going to be released here in Oz.
rant END
The Singularity is closer than you think
Quant
They should define unfair use and work from that.
Unfair use- any use that results in a tangible loss of potential income from the copyright holder from the sale of the copyrighed material (i.e. not from the carrier or from any appended item*).
So it follows that fair use is anything that doesn't cause a tangible loss of income. Private copies for your own use are fair, transfer between media types are fair. Mix tapes for the wife are fair, mix tapes for distant friends are not fair.
Recording TV programs for yourself or close family is fair, recording TV programs and selling them is not fair.
*If they also define it as the copyrighted material itself (not including any carrier) that they earn a profit from, then it stops that Lexmark crap where they attach the copyright material to a toner cartridge and pretending the whole cartridge is the copyrighted material.
1. The open-ended fair use exception is broader in scope than the Australian fair dealing exceptions, which are restricted to specific purposes.
2. The fair use exception is technologically neutral and does not require revision through legislation.
(I would think that the benefits of both these facts is obvious to all.) From me:
1. Greater harmony with USA laws is appropriate because of the FTA
2. '('time-shifting') is a fair use (Sony Corporation v Universal City Studios 464 USC 417 (1984, S.C ('Betamax decision'). ' this is NOT the case in Australia.
IMHO it should be.
3. a more harmonised legal environment will allow the better funded USA EFF to fight the good fight in the USA, and we can then reap the downstream benefits in Australia. (sorry about the self interest)
4. Law should be a reflection of how people think society should be ordered. The vast majority of Australians think that they can :
- record TV on their VCR's
- move music from CD to MP3
the current Australian law is not in harmony with these views, and as such Australians are commiting technical breaches of the law every day, mostly unwittingly. And the AG says so in the intro page.
This is wrong, as law should serve the people, not the corporations. :-)
Now I need to go and read that paper in depth, but that's my first thoughts.
Indeed, my example wasn't perfect. If it were, I think I'd be trying to get myself elected somewhere...
... individual examples of some higher ideal. The idea is to draw the actual lines, not just plot out a bunch of example cases.
... if we define law by example, then we decide cases by analogy ... most analogies are flawed on some level, which means every case will involve "yes, X is like Y in respects A, B, and C, but not D, but we feel that's close enough" ... that's really quite dangerous. If we define by example and expect everyone to pick up on the examples, then we're being very trusting ... but we run the risk of having them guess wrong. With a kid, you can just tell the kid "no, that's not what I meant" ... with law, people die (at least in the US.)
Thanks you for drawing up such a list of "possibly murderous situations" -- I'd been meaning to do so for the purpose of defining the limits of the label "terrorism" (which we use very loosely.) If you look at your examples though, they are (to me) quite obviously points on a map
Did you intend harm? Did you understand the consequences of your actions? Were you in control of your actions, and if not, had you consciously caused yourself not to be in control? Was the victim consenting? Did the victim have the right to consent? Were you executing justice in accordance with laws that the victim had (perhaps implicitly) agreed to? Were you acting preemptively, and if so, were you sure that your enemy had crossed a point of "no return", and about to cause undue harm? Were there any other ways of stopping the person? (Definitions of "free will" and sentience would eventually come into play, I'm pretty sure.)
Teaching by example works well because kids pick up on the "rules" easily -- they don't just think that the examples you've given are the only cases in the universe (luckily). But for law
I'd like to think, when I'm presented before a court, accused of some crime, the -only- thing on the mind of the jurors will be "was this covered by law?", not "what does this law cover?".
I do picture this because I have been through several Australian elections. Every single advertisement is along those lines i.e blatent bunch of misrepresentation, small disclaimer - vote X.
Sure, a good portion of the populace swallows it hook line and sinker, but if you leave only the "educated" to vote you are also most likely only leaving the wealthy and those with an agenda who allready enjoy great power. You also spend your entire election listening to grand promises to get people just to vote, instead of proposals for a better future.
At least with the unwashed masses voting, the government is less likely to come out with a "let them eat cake" type platform, because you can only push an idiot so far before they fight back. You never always get the best, but you dont get the worst of what a government can do.
The current Australian government would love nothing more than to change the voting system so that it was non-compulsory and harder for young people to vote. Why? Because they know that in that case the only people voting would be the party faithful, and the opposition would never get back in without the support of blue collar workers. But still, for now they have power - they are getting ever so cocky with it too, until the point they go too far and the entire country agrees it is time for a change.
It isnt always what you want, but its better than a constant state pseudo-dictatorship run by the Liberal party (Aust equivalent of the Republicans) because only the rich vote to protect themselves.
"If everybody is thinking alike, somebody isn't thinking" - Gen. George S. Patton
No way is option 3 or 4 any good! The fair dealing legislation is a joke. In this regard, the U.S. is in a FAR better position that Australians are. You are aware that the fair dealing legislation is VERY narrow and only covers those who are doing:
1. Research and study
2. Review and criticism
3. "Reporting the news", or
4. Legal advice (although the Crown is deemed to own copyright in federal statutes, and each State in state statutes).
You'd think that research and study would be pretty good, but noooo. You MUST demostrate that you are doing some particular course to even get close to this. You cannot be doing private research and reproduce any of the material on a medium such as a blog, etc.
Only number 1 (consolidate the fair dealing exceptions in a single open-ended provision) seems reasonable to me. And that is only good if clear legislation is formed.
XML is like violence. If it doesn't solve the problem, use more.