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

Australia?

[Anonymous Coward]

You guys are still all criminals anyways right? fp

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.

Re:Australia?

[Anonymous Coward]

Well that is because your chick with the full frontal was probably hot.
While Janet is a shriveled up 50+ year old hag. That was eye ball peelingly scary.

So, I am taking a taxi from the Melbourne airport.
The taxi driver calls back to me, "Where you from, mate?"
"The States, California," I reply
"Mmm, mmm. Well you're a better man than me. I could never live there."
"Why?"
"Too many dickheads."
So we sit in silence for a while. Me looking out the window, ignoring the drive like I usually do.
Then he pipes up with, "Well, I guess we got a lot of dickheads here, too."
After some more thought he breaks the silence with" But I reckon you've got more of them over there."

Yeah, he was a philosopher that one.

US

[Dr_Banzai]

First Canada, and now Australia. When will the US stop trying to push its draconian laws such as the DMCA on other countries?

Re:US

[Kharne33]

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.

In Summary.

[Anonymous Coward]

Australia is trying to come to (the digital) age with its Copyright Act. Today the Attorney-General's department released a call for comments of an issues paper on the standing and possible changes of copyright exceptions: Fair Use and Copyright Exceptions [Word / PDF]. Currently Australians are not allowed to do platform shifting (e.g. ripping a CD to a MP3 player) and may only do very limited time shifting (e.g. recording television programs). Where fair use (US) and the private use exception (EU) may allow these acts, Australia does not know a specific exception for private use.

The Attorney-General said that "Many Australians believe quite reasonably they should be able to record a television program or format-shift music from their own CD to an iPod or MP3 player without infringing copyright law." [press release] The issues paper provides four possible changes to the current "fair dealing" provision and is open to others:

1. consolidate the fair dealing exceptions in a single open-ended provision (would require judicial interpretation)
2. retain the current fair dealing provisions and add an open-ended fair use exception (flexible but uncertainty about scope)
3. retain current fair dealing exceptions and add further specific exceptions (e.g. time & format shifting)
4. retain current fair dealing exceptions and add a statutory license that permits private copying of copyright material (possible problems with licensing scheme and DRMs v. private use)

The issues paper gives a nice insight in Australian copyright law's fair dealing provision, while it tries to provide the basics of other countries, especially the US. It does a fair enough job at that, though its analysis can be quite shallow (for example on the EUCD, which it refers to as the Information Society Directive). It does address the DRM v. fair use issue, which is a central part of the problems the Australian government seeks to solve. I don't see an effective solution in the proposed changes. But then there is no immediate (legislative) solution for it in the US/EU either. Looks like Australia has some catching up to do, before it solves that issue for us all.

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

Restrictive copyright law may be very good.

[Anonymous Coward]

Excessive restrictions on copyrighted music, movies, etc will be GOOD for creating demand for more liberally licensed works like Creative Commons works.

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.

I doubt anything will change.

[n0dalus]

I sent in a complaint to the senate inquiry about the US-AU-FTA, and they did nothing (except send me some nice looking books on their brainless decision). Why should I think they will change anything if I say something now?

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.

Perhaps you can adapt my Canadian letter?

[saskboy]

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.

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/hou se/PostalCode.asp?lang=E

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/ statement_e.cfm

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

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:current restrictions

[Farmer Tim]

"The exceptions sound rather broad"

They aren't, they're very clearly specified and quite limited. You have to read the act to realise that the summary is rather lacking.

Here's the 1968 copyright act:
http://www.austlii.edu.au/au/legis/cth/consol_act/ ca1968133/

And here's the 2000 Digital Agenda act (already in place, you might notice):
http://www.austlii.edu.au/au/legis/cth/consol_act/ caaa2000294/

Ordinarily I'd answer your question in greater detail, but...well, sorry, I can't be arsed, I'm going home for the day. Start at section 10.

Same thing in NZ

[Gurp]

New Zealand has more or less the same law - it's illegal to convert music from CD to MP3. Not surprisingly our government is assessing the same ammendment to the law. Not quickly or anything, but they are thinking about it.

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".

*Cough* *cough* *splutter* *splutter*

[OzPeter]

rant
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.

/rant

DVDs

[tqft]

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

USA-style copyright is better because...

[indaba]

From point 7.12 of the paper..

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. :-)

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

[dbIII]

Why do you guys keep electing the people that pass this stuff?

It was complicated, but here's a summary: First there were the poeple that were called queue jumpers who didn't go through the proper channels of the legitimate Afganistan government to get to Australia, the government stirred up a lot of feeling. Then when 911 happened these aforementioned refugees fleeing the Taliban were named as potential terrorist pretending to be refugees so they could come to Australia and wreak havoc - millions were spent stopping them coming ashore. This and other teflon moments happened - popularism backed up by creating a culture of fear. Another stunt was to get as many people as possible to borrow to buy property and then say that the other guys would raise intrest rates (which happened anyway without the other guys getting in). The Australian economy is booming - due to borrowing overseas to build lots of houses. The USA experienced several boom-bust cycles in exactly the same way in the 1800s.

Sadly, redneck politics works so long as you can point to a minority that people don't think much of - 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! It's not really about racism, or even being authoritarian - it's about getting votes and general incompentance.

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.