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Aug 28, 2017


Chris Pash has written a rambling piece in Business Insider suggesting that Professor Kimberlee Weatherall and I have acted without integrity in our academic research into copyright. The claims relate to our membership of the Board of the Australian Digital Alliance (ADA), on which we sit as volunteers and independent experts, alongside representatives from schools, universities, libraries, technology companies and cultural institutions. That membership is clearly disclosed on our university profiles online, as well as wherever else it’s relevant.

This isn’t the forum for a line-by-line refutation, but there is an interesting yarn in the pattern of the misrepresentations he makes.

One of Pash’s claims is that Kim and I should have declared our board membership in our recent book, What if we could reimagine copyright? The bow he drew in his email to us seeking comment was that the ADA is advocating for fair use, and the book was about fair use, and thus disclosure was necessary. But in reality it’s not. Reimagine is a thought experiment imagining what copyright might look like if we were freed from vested interests, business models and ways of doing things. In fact, we deliberately didn’t include a chapter on fair use or exceptions because we thought there were more interesting rocks under which to look. One of the biggest themes that emerged from this international collaboration was the idea that copyright is failing creators — and that any reimagined system would have mechanisms in place to better protect their interests. You can see these ideas for yourselves; we made the book available for free online.

Reimagine’s pro-author theme was also at the core of our joint submission to the Productivity Commission following its draft report into intellectual property (IP) last year. There, we told the Commission that it was not sufficient to treat copyright as being purely economic in nature, when in fact creators deserve recognition and rewards that go beyond the bare amount necessary to incentivise creation.

We explained all this to Pash, and provided him access to both pieces of work when he asked us for comment. And yet he still misrepresented the subject matter.

More seriously, Pash also takes aim at my recent ARC Future Fellowship, hinting at some impropriety in the application process. Had he sought comment from me on this, I could have let him know that not only did I disclose my board membership in the application, but I disclosed the single piece of commissioned research that I’ve ever done for the ADA (also publicly available) no fewer than five times.  

Pash claims I was funded to “show how the current ‘fair dealing’ copyright regime negatively impacts culture”. I wasn’t. Neither “fair dealing” nor “fair use” appear in the application at all.

Leading on from Reimagine, my Future Fellowship is actually about how we need to take authors’ interests seriously if we’re going to have any chance of fixing the fundamental problems with copyright. Pash quoted very selectively from the project’s short description on the ARC website. What he left out is the bit that says that the mechanism I’m exploring to unlock meaningful reform in this deadlocked space is “fuller protection of authorship”.

This work was motivated by years of studying how, despite all the rhetoric in their favour, authors always get the short end of the stick. The economic literature into creative labour markets has repeatedly shown that authors are often forced to give up all or the bulk of their rights in exchange for distribution and audience access. There’s lots of reasons for this, but lack of bargaining power is one of the big ones. Other countries, particularly in continental Europe, recognise this by having laws that protect authors in their contracts with cultural intermediaries. In Australia though, authors have no such protection. My work seeks to change that.

So just why is a member of the Copyright Agency Limited’s Board, indeed one of the members who are explicitly supposed to be representing authors’ (rather than publishers’) interests on behalf of the Australian Society of Authors, misrepresenting and seeking to discredit research that’s about making copyright work better for creators?

The Pash piece was published the day before the government’s response to the Productivity Commission’s report into IP was released. In its final report, the Productivity Commission recommended the government “strengthen the governance and transparency arrangements for collecting societies”. As deputy chair Karen Chester said in her speech to the ADA earlier this year, “at the end of the day, and as a de minimis, you need to be able to follow the money. And we couldn’t and nor could rights holders or rights users.” The best estimates available to me, given the current lack of transparency, suggest that the authors might be receiving mere cents on the dollar.

The government supported the commission’s recommendation and has announced an immediate review. Submissions, by the way, are due on September 15. If you have any thoughts on the governance and transparency of Australia’s collecting societies — and, if you’re an author, on whether Chris Pash is a person you want representing your interests — now’s the time to make your voice heard.

* Dr Rebecca Giblin is an Associate Professor within the Monash University Law Faculty. She is the sole Chief Investigator on the ARC Future Fellowship ‘Reclaiming copyright’s lost cultural value for authors and the public’ and lead Chief Investigator on the ARC Linkage Project ‘Legal and social dynamics of ebook lending in Australia’s public libraries’. She tweets via @rgibli, and volunteers her time as an independent copyright expert on the Board of the Australian Digital Alliance.


Aug 18, 2016


Former Foxtel chief executive Kim Williams claims that the Productivity Commission’s report on copyright could spell the death of Australia’s film, music, book and television industries. But there is little to no evidence that is the case.

As Productivity Commission commissioner Karen Chester told Crikey in April, the PC believes that Australia’s copyright system, over time, has swung too far in favour of “some vocal rights holders and some influential exporting IP nations, and it has lost sight of the users”.

The Productivity Commission’s draft report, released in April, is an attempt to swing the pendulum back.

This is “patent nonsense”, according to Williams, who now heads up the Australian Copyright Agency. He says there is no evidence copyrighted works are more expensive in Australia than elsewhere — although Choice does have evidence Australians paid about 50% more for digital content than elsewhere in the world when the dollar was closer to parity.

In a speech to the Melbourne Press Club on Wednesday, Williams said the Productivity Commission’s draft report was “ill-considered”, “poorly argued”, “unusually slanted” and “lopsided”.

Copyright holders such as those Williams’ organisation represents have many issues with the report’s suggestions to improve copyright in Australia, chief among them the proposal to introduce a fair use rule into the Copyright Act.

The Productivity Commission is one of many government agencies to recommend the government adopt a new fair-use standard, similar to that in the US, to make use of copyright works for adaptation, online services, news reporting and in schools much easier.

Williams has been critical of the proposal, relying on a PricewaterhouseCoopers report commissioned by the Copyright Agency that found fair use could cost Australia’s GDP more than $1 billion.

But the Productivity Commission examined the claims made by PwC in its draft report and thoroughly debunked many of them. The $1 billion GDP impact is based on a cost-benefit analysis that the PC said was “methodologically flawed”:

“It concentrated on potential impacts on publishing, ignoring the fact that fair use would apply to all of the copyright industries. The cost benefit analysis also implicitly assumes a closed economy model where transfers represent a redistribution of welfare between consumers and producers without a change in overall welfare.”

Williams also claimed that the introduction of fair use in Canada led to a 98% reduction in licensing fees to schools and universities. The PC said in its draft report that there is debate over the extent to which all declines in the Canadian publishing sector can be blamed on changes to the copyright act, including the shift to digital textbooks, the sales of second-hand textbooks, and the use of open education resources.

The Productivity Commission also said that there are significant differences between the Canadian and Australian markets, including the fact that Canada is adjacent to the world’s largest English-speaking publishing market that could supply goods easily to Canada. The PC has said that where fair use has been introduced, such as the US and Israel, innovation has flourished.

In response to Williams’ assertions, in a series of tweets this morning, intellectual property academic Rebecca Giblin listed several examples where a lack of fair use in Australia was restricting what educational institutions could do. For example, a lecturer who wants to use a clip from Breaking Bad in a lecture currently has to seek permission from the studio. If fair use were in place, with an exception for educational uses, permission would not be required.

Williams also takes issue with the PC’s position that the ideal copyright term is between 15 and 25 years after the creation of the work. Australia has signed up to international treaties (with the US) that have forced our copyright term for works to be extended to 70 years after the death of the author. For example, it will be 2086 before Starman enters the public domain.

Williams said a copyright term of between 15 and 25 years would be akin to confiscating superannuation from people when they turn 50:

“Most would call that a form of theft, wouldn’t they? Not only is it unfair but it makes it much harder to support and nurture the next generation of stars and Aussie icons — the Jimmy Barneses, Peter Sculthorpes, Patrick Whites and Mad Maxes of the future.”

Williams instead advocated for a “progressive, sensible, and responsible evolution” to copyright changes, driven on principles of doing no harm and respecting creators. If the government adopts the PC’s draft recommendations, Williams predicts a backlash.

“You don’t have to be a genius to see that right now economic reform and innovation are in serious trouble. There’s a backlash. Whether it’s the Brexit, or the rise of populists like Donald Trump and Marine Le Pen, or even the result of our own recent federal election, too many people are saying that innovation and economic change are creating too many losers and too few winners.

“Undermining copyright will perhaps prove such critics correct. By stopping so many self-employed creative people from gaining adequately from their work, it will create a potential new source of backlash.”

Williams estimates that the average writer makes just $13,000 a year from his or her writing, and that loosening copyright restrictions will make it even tougher for writers.

But how much the Copyright Agency actually pays Australian writers remains unclear, as it does not disclose how much it pays directly to Australian authors. The Copyright Advisory Group to COAG said in its response to the draft report that the $700 million per year paid by schools on direct purchase would not be greatly affected by fair use, and that the licensing scheme the Copyright Agency oversees actually tends to benefit overseas authors more than Australian authors.

The commission’s final report will be handed to the government in September.


May 26, 2016


Even bringing up the debate that perhaps copyright terms might be a tad too long in Australia was enough to send copyright maximalists into a spin this week, forcing Communications Minister Mitch Fifield to correct the record.

In the Productivity Commission’s report on the state of Australia’s intellectual property system, released in April, the commission noted that the ideal length of time for a piece of content to remain in copyright would be between 15 and 25 years after its creation, rather than the “author’s life plus 70 years” term we have in Australia today, thanks largely to Disney via the US Free Trade Agreement. But in its report, the commission made clear that this view was a “finding”, rather than a specific recommendation, because, as Crikey reported at the time, Australia’s hands were largely tied in terms of copyright because of international trade agreements.

It didn’t take long for the Productivity Commission’s prediction of the Chicken Little response from copyright holders to come true. Well-respected authors such as Richard Flanagan accused the government of trying to take royalty money away from them. Author Jackie French said that the report was “economically rubbish” and “morally indefensible”:

“Innocently, I had assumed that the royalties from these books would continue to support my husband and myself in our old age. Now, in my sixties, I have been told by the ill-named ‘Productivity Commission’ that ‘Writers rarely write for financial reasons,’ and I may only own my work for 15 years.”

This was the sideshow to the bigger fight copyright owners are having, which is preventing a fair use exception — which would allow copyrighted material to be adapted and used for a variety of purposes — from being introduced into Australian copyright law. This would replace the outdated fair deal exceptions, which require most of those who want to use copyrighted material to seek permission first. The Productivity Commission recommended fair use be implemented, as fair deal limits much of what people can do in Australia today.

“Where [fair use] is alive and well in the US and Israel, innovation and creativity fosters, and from our perspective, it doesn’t really undermine the commercial rights of the actual rights holders themselves,” Productivity Commissioner Karen Chester told Crikey last month.

Many copyright defenders, including Foxtel and Kim Williams, pointed to a PwC report released in February that claimed that a fair use exception would reduce Australia’s GDP by $1 billion and force rights holders to take up court cases to protect their content. Williams said:

“‘Fair use’ is an American legal principle which would allow large enterprises to use copyright material for free, which, under Australian law, they currently have to pay for. PwC recently estimated that introducing ‘fair use’ in Australia could result in a loss of GDP of more than $1 billion.”

The problem was, the Productivity Commission pre-empted this in its report by reviewing PwC’s findings and finding them wanting. It found the report had assumed current copyright settings were optimal, and conflated fair use with third-party use, and assumed that one could easily compare the Canadian situation on copyright with Australia’s. Most importantly, the cost-benefit analysis used to derive the $1 billion figure was flawed:

“It concentrated on potential impacts on publishing, ignoring the fact that fair use would apply to all of the copyright industries. The cost benefit analysis also implicitly assumes a closed economy model where transfers represent a redistribution of welfare between consumers and producers without a change in overall welfare. However, as a large net importer of copyright material, transfers from Australian consumers to foreign producers do affect community welfare.”

Their criticisms of the PwC report were conveniently ignored by those arguing against fair use, who all continued to cite the PwC report as evidence that the sky would fall in should fair use be implemented in Australia.

Nevertheless, the government has felt the pressure. In a press release this week, Fifield put out a statement categorically ruling out changing Australia’s copyright term:

“This is not something the Government has considered, proposed or intends to do.”

Despite a concerted campaign from rights holders against fair use, Fifield hasn’t, however, ruled out potentially bringing in fair use changes after the election.

“The Turnbull Government is committed to ensuring that the intellectual property system provides appropriate incentives for innovation and the production of creative works. We also need a system that does not unreasonably impede further innovation, competition, investment and access to goods and services.”

Legislation to “simplify the protections” for copyright owners would be introduced at the start of the next term of Parliament, Fifield said. This is largely for the non-controversial “safe harbour” changes to make it easier for libraries to preserve copyright material.


Nov 25, 2015


The government had big plans for copyright in the spring sitting period of Parliament — or it did, at least, until Malcolm Turnbull became prime minister.

Emails between the Attorney-General’s Department and the Communications Department seen by Crikey reveal the government was planning on legislating for significant copyright reform in the spring sitting period. While much of the content of the emails released under freedom of information law were redacted due to cabinet deliberation, the government had been working towards “key legislative reforms” on copyright law, with eight (redacted) dot points of reforms the government had planned to have introduced in the spring parliamentary sittings, subject to cabinet approval and inter-departmental consultations.

Before the change of leader, the Attorney-General’s Department indicated Brandis had not yet approved of the policy proposals.

The government had been expected to respond to the Australian Law Reform Commission (ALRC) report Copyright and the Digital Economy the week that Turnbull replaced Tony Abbott as prime minister, but it has not since indicated when it intends to respond.

The report made a number of recommendations including the introduction of a flexible fair use exemption — similar to what already exists in American copyright law — as a defence against claims of copyright infringement, as well as introducing new exemptions, new remedies to encourage the use of orphan works (works whose authors are indeterminable or uncontactable), changes to broadcasting exemptions, and amending copyright contract limits.

Technology companies in particular were in favour of fair use being introduced because their daily business — such as caching methods used by Google — are allowed under US fair use exception, but could potentially be in breach of Australian copyright law. However, copyright holders are concerned that an overly broad fair use exception would make it harder for them to establish violations of their copyright.

When Brandis released the report in February 2014, he indicated the government would embark on a massive overhaul of the Copyright Act to make it “shorter, simpler, and easier to use and understand”. He indicated the act would become technology neutral (without references to outdated technology like videotapes) and would be mindful of Australia’s international obligations around intellectual property — like all those trade agreements we’ve signed up for. Brandis said at the time:

“We will do this in a way that ensures appropriate protection of copyright material in the digital age and encourages culturally and economically beneficial uses of material that do not undermine fundamental copyright principles. That of course is the balance to be struck and the merits do not lie entirely on one side of the scale or on the other.”

Brandis always sat more on the side offering greater protections for copyright holders rather than adapting copyright for the digital era, and in the year since that speech, he introduced and passed legislation to allow copyright holders to go to court to get piracy sites blocked, and tasked the rights holders and internet service providers to work together on a code targeted at reducing online piracy. The former has yet to be used, and the latter is currently at a stalemate.

Brandis handed over the responsibility for copyright along with the Arts portfolio to new Communications Minister Mitch Fifield when Turnbull became leader, and the shift to Communications from the Attorney-General’s Department has left rights holders concerned that the scales will have tipped against them.

The emails reveal Brandis had been invited to speak at the Australian Copyright Council’s Copyright Symposium last month in Sydney. This invite was instead extended to Fifield, who was unable to attend, but outlined in a video message a much softer approach to copyright than Brandis had discussed in his 2014 speech. While praising the government’s efforts so far, Fifield indicated the Copyright Act must balance the interests of rights holders and users “in a technology savvy and forward-thinking way”:

“It should facilitate easy, affordable, and legal access to copyright material but also ensure the economic rights associated with copyright material are enforceable and upheld.”

Where Brandis talked strongly about stopping “theft” by people downloading films and TV shows, Fifeld spoke as Turnbull often did as communications minister of the need for film and TV companies to make their content available in a timely and affordable manner:

“I want to see rights holders and industry working together to manage piracy, whether by educating consumers, making more content available to Australian consumers, or developing innovative licensing platforms to the mutual benefit of creators, distributors, intermediaries, and consumers.”

In a speech to Screen Producers Australia last week, Fifield also indicated the government was now actively considering reform of the Copyright Act.

“The government is currently reflecting on how we might improve the workability of the act.”

Fifield indicated in the video he was particularly concerned, as the former minister for social services, with Australia meeting the requirements of the Marrakesh Treaty to allow new exceptions to copyright law to allow organisations to make books available in formats suitable for the visually impaired. Australia signed onto this treaty in June last year, and the Joint Standing Committee on Treaties recommended a law change to ratify this treaty in September.

Crikey asked Fifield’s office if and when the government intended to pursue copyright changes originally planned under Abbott, and a spokesperson indicated that the government had not made any policy decisions yet.

“The department has provided a briefing to the Minister on the Copyright Act since assuming responsibility for the portfolio,” the spokesperson said.

Foxtel, Village Roadshow and Cordell Jigsaw Zapruder have all said they plan to lodge legal cases to block piracy sites, but no cases have made it to court in the six months since the legislation passed. Foxtel told Crikey this month that a case was coming, but it was taking longer than planned.

It is one part of a series of apparent changes to digital government policy under Turnbull. The Digital Transformation Office was moved into the Department of Prime Minister and Cabinet, and last week the government announced that although it was not rewriting the cybersecurity strategy that had been under development under Abbott, the new Prime Minister had “taken a keen interest in the review” and provided feedback that had been incorporated into the review. The strategy was expected to be released this year, but the government now states there is no set date for release.

Planned mandatory data breach notification legislation is set to be introduced into Parliament in the next fortnight, while new national security legislation targeting telecommunications infrastructure that had been announced under Abbott and was due to be introduced this year, it will now not be introduced until next year.


May 16, 2013


Australia’s Chinese-language Sing Tao newspaper may routinely steal articles from the internet and from Australian newspapers and magazines. Yet it has been congratulated by the New South Wales Parliament, and this year it won an industry award.

Sing Tao editor Vincent Ho recently admitted to the theft of a 2500-word feature article I wrote for The Sunday Telegraph. In a lengthy email conversation he said:

“It will [sic] be a shame if Australians who read only Chinese would not be able to enjoy this feature,” he explained, in response to my inquiries. “We have Taken the liberty of writing a Chinese write-up basing on your article [sic].”

Ho then refused to discuss the extent of his paper’s copyright looting, a practice that is difficult to monitor and has been hard to prove.

Raymond Chow, publisher and editor of the Christian Chinese-language weekly magazine Sameway, says copyright theft is routine practice for Australia’s Chinese-language newspapers. “The Chinese newspapers here all do the same thing,” he said. “They take things from the internet and from Australian publications.”

Chow says that often the translation can be very poor, the product of either “machine” translation (such as the automatic translation aids provided by Google) or work by poorly paid and relatively inexpert translators. The meaning of the articles is often distorted.

As a publisher who pays journalists to produce articles, he’s been frustrated by this seemingly widespread practice of lifting articles from the internet and from Australian publications. “We have complained about this, about all the papers,” he said. “We are in a disadvantaged position. We need to employ people to write our articles. We complained to the ad agencies. We complained to the Press Council. We raised the alarm.”

Chow provided a small selection of examples of allegedly blatant pilfering in Chinese-language newspapers, which included pieces originally published in the Herald Sun, The Sydney Morning Herald, The Age and the Cairns Post. None of the Chinese-language newspapers credited a source.

So are Australia’s major news organisations actively pursuing this copyright theft by Chinese-language newspapers? A Fairfax spokesman declined to comment;  a News Ltd spokesman says the company is “actively working” on copyright protection but declines to say whether that includes legal action. “We do not condone plagiarism and have long advocated strengthening copyright law,” he said.

A former Australian news editor says he was often infuriated by Sing Tao‘s ongoing looting of work that had been time-consuming and expensive for his organisation to produce. Company lawyers sent “cease and desist” letters to Sing Tao, but the quiet stealing continued, and the theft was expensive to monitor on a regular basis and difficult to prove. Like so many other irritated editors, in the end he let it slide: it became too difficult and expensive to put an end to the hijacking.

In an era of concern regarding intellectual copyright, when most English-language publications in Australia are struggling to stay afloat, some industry observers were startled when Sing Tao was fulsomely praised by the NSW Parliament last year. Labor parliamentarian Shaoquett Moselmane’s motion “congratulates … all at Sing Tao Daily for their commitment to keeping the Australian Chinese community informed, and wishes the newspaper all the best for the next 30 years of service”. Sing Tao was also recognised in this year’s Premier’s Multicultural Media Awards, when CEO Simon Ko won a lifetime contribution award.

A multimillion-dollar global organisation based in Hong Kong, Sing Tao News Corporation has offices in four US cities, in Canada, the United Kingdom and Hong Kong, as well as in Melbourne and Sydney. According to its website it “boasts a range of Chinese-language and English-language paid and free products targeting local as well as overseas readers”. Ominously, the website notes:

“To fulfill the content needs of media operators and key industry players, primarily in the PRC (China), the Group sells and distributes repackaged information and content created by its different media businesses as well as third party content providers.”

It seems the Sing Tao group has a double set of standards on copyright theft. In 2008, a forum on the Asian Fanatics website published this note:

“We’ve just received a letter from singtao [sic] requesting us not to post images and content from singtao daily. Content includes translations. Therefore, all existing news (including translations) and pics from these sites are deleted.”


Aug 6, 2012


Trade negotiations don’t tend to grab headlines during Olympics season. But when you’re trying to wrap up the Asia-Pacific in a big, detailed, comprehensive preferential trade deal as soon as possible, you don’t stop just because a bunch of men are running 100 metres in sub-10 seconds.

Negotiations continue apace on the proposed Trans-Pacific Partnership Agreement (TPPA) — to include Australia, the US, New Zealand, Singapore, Chile, Peru, Vietnam, Malaysia, Brunei Darussalam and possibly Japan and Canada. The draft text of this agreement is a closely guarded secret, and most of what we know about detailed proposals comes from leaks. Knowledge Ecology International published a new leak from the intellectual property chapter on Friday.

And what’s really disturbing is that it looks like, yet again, Australian negotiators are quite prepared to compromise Australian interests and support unbalanced US proposals in copyright — even when most of our neighbours want something different. It seems like it’s “all the way with the USTR” on this one.

The leak relates to one issue: copyright exceptions. Early in July, the US announced with great fanfare that it would, for the first time, be “proposing a new provision … that will obligate parties to seek to achieve an appropriate balance in their copyright systems in providing copyright exceptions and limitations for purposes such as criticism, comment, news reporting, teaching, scholarship, and research.” This was supposed to be good news for users. Commentators expressed some cautious optimism and support for the general idea — user groups have been pushing for some time to get copyright and other IP exceptions into trade agreements to counter the ongoing expansion of the rights of IP owners.

Sadly, assuming the leak is genuine, text doesn’t match hype. In fact, it’s almost a bait and switch. What the US (and Australia, in our deputy sheriff role) is really proposing is that countries in the TPPA try to provide some balance in copyright law (“each party shall seek to achieve an appropriate balance in providing limitations or exceptions”). That’s better than nothing, sure, but it’s pretty weak, especially when compared to the language that any exceptions shall be confined according to a legal standard known as the “three step test”. I mean, you could give a country a gold star for effort based on that provision, but it would be hard to, say, argue in an international dispute that a country even very restrictive copyright laws that penalised your digital innovators wasn’t “seeking” some balance.

What’s more — and here we could get really technical, but we won’t — the rest of the proposal could actually restrict a country’s ability to introduce new exceptions in copyright, because it applies the “three step test” right across the board to all copyright and related areas — something that the major multilateral agreements like the Berne Convention and the TRIPS Agreement don’t do.  And the proposal opposes language — taken from an existing treaty — that would make it clear that exceptions can be extended in the digital environment where appropriate. The proposal seems even to lack some text that Australia negotiated into its US Free Trade Agreement to preserve a bit of room for exceptions to copyright. Are we really prepared to concede even the small victories of 2004?

Copyright exceptions matter, and not just so that ordinary people can, say, record TV to watch later or use music in a YouTube parody, even so that schools, or libraries can get access to and build on existing material. Exceptions also matter for innovators — like search engines, social networks, and all those other players that build our digital infrastructure and playgrounds. Without exceptions, there are no search engines, and no YouTube. The Australian government seemed to recognise that exceptions matter when it asked the Australian Law Reform Commission to look into whether our exceptions are adequate.

It is ironic, and sad (and a little bit of history repeating) that Australian negotiators seem to be pushing a restrictive line on exceptions that could prevent our government from adopting proposals the ALRC comes up with in the national interest. Despite the Production Commission saying this kind of thing is a bad idea and not in the national interest. Despite all the controversy we’ve been seeing over other IP agreements, like the Anti-Counterfeiting Trade Agreement.

I hope that DFAT rethinks its position. And I hope this shows, too, that all the people demanding to see TPP text before the conclusion of the agreement are right. We need the text because the devil is, as always, in the detail.

Crikey Says

Apr 23, 2012


At first glance, this morning’s High Court decision regarding Roadshow Films and others v iiNet Limited looks like a classic case of David versus a very formidable Goliath in the shape of the major Hollywood studios.

This is a three-nil win for the service provider — iiNet first won in February 2010 when 34 Australian and US film and TV copyright-holders first alleged in the Federal Court in 2009 that iiNet was “authorising” the copyright-infringing actions of its customers by failing to act on the complaints they’d filed. They then won the Full Federal Court appeal in February 2011.

But as Stilgherrian writes in Crikey today, based on the court’s full judgment, it’s entirely possible that things might have turned out differently had the Australian Federation Against Copyright Theft or iiNet handled things differently. And there are some “less-than-subtle hints that the government might wish to have a look at this”.

Stilgherrian points out that the High Court said in paragraph 77:

“The appellants’ submission … assumes obligations on the part of an ISP which the Copyright Act does not impose.”

An act, first enacted in 1968, that ran for around 100 pages and is now five times the size as it attempts to keep pace with massive technological changes. An act that the government may be inclined to look at amending, if certain interests decide to lobby hard enough.

So what does this mean for internet users who value the free flow of information in tandem with a reasonable set of expectations placed on third party providers? Watch this space very closely, and keep across the fine print.

Just as the recent campaigns against the Stop Online Piracy Act and Protect IP Act in the US highlighted, it’s up to savvy users to pick holes in the arguments of industries that are too outdated to frame their expectations around the way the internet actually works, as opposed to how they’d like it to work.


Apr 20, 2012


The phones must be running hot in Attorney-General Nicola Roxon’s and Communication Minister Stephen Conroy’s offices this afternoon. Internet service provider iiNet just won its long-running legal battle against the massed forces of Hollywood, but there’s some gotchas buried in the High Court decision.

The #iiTrial, officially Roadshow Films & others v iiNet Limited, kicked off in the Federal Court in 2009 when 34 Australian and US film and TV copyright-holders alleged that iiNet was “authorising” (in the technical legal sense) the copyright-infringing actions of its customers by failing to act on the complaints they’d filed. The case was informally called AFACT v iiNet after the industry lobby, the Australian Federation Against Copyright Theft.

iiNet enjoyed a comprehensive win in February 2010, and won the Full Federal Court appeal (kinda) in February 2011.

This High Court appeal being unanimously dismissed makes it a three-nil win for the ISP, as the summary of the judgement explains.

“The court observed that iiNet had no direct technical power to prevent its customers from using the BitTorrent system to infringe copyright in the appellants’ films. Rather, the extent of iiNet’s power to prevent its customers from infringing the appellants’ copyright was limited to an indirect power to terminate its contractual relationship with its customers. Further, the court held that the information contained in the AFACT notices, as and when they were served, did not provide iiNet with a reasonable basis for sending warning notices to individual customers containing threats to suspend or terminate those customers’ accounts.”

But as the court’s full decision makes clear in paragraph five, the key question in this appeal, whether iiNet authorised its customers’ copyright-infringing acts, “depends upon all the facts of the case”. That is, things might have turned out differently had AFACT or iiNet handled things differently. We’ll never know.

The court also provides some less-than-subtle hints that the government might wish to have a look at this.

When first enacted in 1968, the Copyright Act ran for around 100 pages. But by 2007 it was more than five times the size, what with changes needed for the US Free Trade Agreement as well as massive technological changes. In paragraph 120:

“The history of the Act since 1968 shows that the Parliament is more responsive to pressures for change to accommodate new circumstances than in the past. Those pressures are best resolved by legislative processes rather than by any extreme exercise in statutory interpretation by judicial decisions.”

It’s easy to imagine the government listening with sympathy once more to the poor, struggling copyright industries. Only today the PM announced a $12.8 million bribe, sorry, gift to the producers of The Wolverine. That certainly “sends a message”, as the phrase goes, no?

More ominously, from the internet industry’s point of view, is this from paragraph 79:

“The difficulties of enforcement which such infringements pose for copyright owners have been addressed elsewhere, in constitutional settings different from our own, by specially targeted legislative schemes, some of which incorporate co-operative industry protocols, some of which require judicial involvement in the termination of internet accounts, and some of which provide for the sharing of enforcement costs between ISPs and copyright owners.”

We’re talking the so-called “graduated response” and “three-strikes” laws such as those already enacted very close to home in New Zealand.

A handful of countries have said such laws are unconstitutional. Internet access is now such a fundamental part of society that access is a human right. Cutting off a household to punish one transgressor is unreasonable. But of course that freedom to communicate human right thing ain’t so strongly legislated here in Australia.

As deadline approaches the legal experts are still perusing the decision and discussing it — via Twitter, of course.

“Well, on a first reading, the #iitrial judgment looks like a genuine win, and, as @rgibli predicted, a retreat from the FFC’s [Full Federal Court’s] views,” tweeted Kimberlee Weatherall, associate professor at the University of Sydney’s law school.

“The finding that the power to terminate subscribers was indirect only is a retreat from FFC’s view that termination could be reasonable,” she added.

Peter Black, who teaches internet law at the Queensland University of Technology, agreed. “It does indeed — it is most encouraging. But it also just means that the battle shifts squarely to law reform and the development of an industry protocol,” he tweeted.

As the High Court said in paragraph 77:

“The appellants’ submission … assumes obligations on the part of an ISP which the Copyright Act does not impose.”

So let’s just change the Copyright Act, right? Stand by.


Feb 8, 2012


Surprise, surprise, the lobbying has started. The news today is full of the fact that a group of sports chiefs met with senior government ministers to seek a “quick and simple” amendment to the Copyright Act to “fix” the decision in the Optus versus NRL case handed down last week. Ah, yes, the knee-jerk reaction. “Just make this little change and everything will be fixed.”

Don’t take that claim at face value. Our copyright law is a wondrous complex beast, and even apparently simple tweaks carry the potential for significant unintended consequences. Let me explain a little.

Justice Rares ruled on broadly two questions, legally speaking. First, when consumers use a cloud-based service such as Optus TV Now, is it Optus, or the consumer, who is making the copies, or doing the streaming? Justice Rares ruled that it is the consumer who is undertaking those acts. On this, I think Rares J is right: it’s entirely consistent with case law overseas, and with our own copyright precedent. It rightly pegs a cloud provider as a facilitator of others’ acts, not as the actor.

That doesn’t let cloud providers entirely off the legal hook — if their customers engage in mass infringement, we have rules against “authorising” infringement. But it’s important to realise that any copyright amendment that overturned this part of the ruling could have disastrous consequences for any and all cloud-based services. Suddenly every cloud operator would need copyright licences for any copyright material on their servers. If they can get them. Hello barriers to entry.

The second part of the ruling related to the time-shifting exception. Here the judge had to decide whether consumers were acting only for “private and domestic purposes”, and to watch the broadcast “at a more convenient time”.  Justice Rares ruled that what was happening on Optus TV Now did fit this exception, even where, on Apple devices, they could watch the recording on a two-minute delay.

Now I can imagine a few ways the sports chiefs might seek to overturn that interpretation. They could go the whole hog and demand that the exception simply not apply to cloud-based services. That would mean consumers could record TV to watch later — but only on their own digital video recorder in their home. Or they could demand a carve-out for live sports (so no recording the football). Or they could demand that “a more convenient time” mean no earlier than the completion of the original broadcast — getting rid of the streaming on two-minute delay and protecting “live” sports but preserving consumers’ ability to record football.

Some of these possibilities are worse for the football-loving public than others. It would be pretty drastic, for example, to deny people any right to use cloud services (and terrible for innovation and our digital economy). It would be harsh indeed to deny the right to record live sport (and ironic, since recording football was one thing Senators were concerned to protect, when they started thinking about this issue  in 2004). Preventing the streaming on a two-minute delay is less severe.

But any change to the time-shifting exception leaves football fans worse off. Most obviously, any change that will satisfy the sports chiefs and protect the AFL’s exclusive deal with Telstra means that customers of any other mobile phone provider lose out (if they’re AFL or NRL fans, that is). We’re meant to change mobile providers for the NRL season? How does that make sense? And, by the way, how does that serve the NRL which surely wants a bigger audience for its games?

More generally, if the government turns around now and changes the law, we all lose. This is because of the message that an amendment will send to anyone who wants to offer innovative services to consumers in the digital environment. In this case, Optus took a risk, invested in a new service for its customers, entirely within the law. It acted on the basis that the government had given consumers certain rights to time shift in 2006. If the government turns around now, in panicked response to the sports chiefs’ lobbying, and retracts rights it gave so recently, what incentive does anyone else have to take a risk in the future? So much for Australia’s exciting new digital economy.

It seems to me that both the government, and the sports chiefs, might do well to take a breath and look around. The government might do well to read some of the online comments from the public, many of whom are displaying little sympathy for the sporting codes and broadcasters who have failed, in so many cases, to provide live access to big sporting events (anyone remember the Rugby World Cup?). Or they could refer the issue to the ALRC, which is already meant to be looking at copyright exceptions this year.

And the sports chiefs might do well to think a little more creatively: to see the internet not as just another revenue stream to be tapped through exclusive licences, but as an opportunity to engage directly with the fans, and to provide a better and more interactive experience of live sport than Telstra or Optus ever will.


Mar 14, 2011


Apple is back in the Federal Court tomorrow, facing a copyright infringement claim from Australian TV production company Jigsaw Entertainment. If Apple loses, it and every other software distributor could be forced to look more closely at the apps they sell — an expensive proposition.

Jigsaw, producer of shows including Bondi Rescue, Stupid Stupid Man, Two Men in a Tinnie and the BlackJack crime thrillers, have their sights on the iPhone app Chopper Soundboard. The soundboard sampled the parody of celebrity toe-cutter “Chopper” Read from Jigsaw’s The Ronnie Johns Half Hour — without authorisation.

During the brief time it was on sale through Apple’s iTunes Store in mid-2010, Chopper Soundboard became a top-5 selling app in Australia, and number one in the entertainment category. Jigsaw says that between 10,000 and 20,000 copies were sold at US$0.99 each.

“Apple breached our copyright by selling it, and also engaged in misleading and deceptive conduct in making it look like we had endorsed the product, which we hadn’t,” Jigsaw chief executive Nick Murray told Crikey.

“There’s a massive lost opportunity for us in someone else having put an app up too cheaply that was bad quality,” he said, referring to the audio being lifted directly from the live TV program, audience laughter and all. “Cash and an apology would do well.”

Jigsaw will not be suing the developer of the app, a Melbourne schoolboy using the online handle “TheKeeganator”.

“He clearly didn’t mean to rip us off,” said Murray, who has spoken with the boy’s apologetic father. “I don’t want to see him get into any more trouble than he probably already is.”

Murray has been unimpressed with Apple’s process for responding to allegations of copyright infringement, describing it as “appalling” and Apple’s approach as “arrogance”.

Apple initially ignored Jigsaw’s email, he says, taking eight days to forward it to the developer. Chopper Soundboard was eventually taken offline not by Apple but by the developer’s father. It was almost two months after that before Apple responded to Jigsaw’s legal demands.

“We can get an infringing piece of footage taken off YouTube very, very quickly, within an afternoon really,” Murray said, “whereas Apple are taking, you know, forty times longer than that.”

Apple’s requires all iPhone and iPad developers to warrant that their apps contain no copyright-infringing material. This case will therefore centre on the legal question of whether it is reasonable for Apple to simply accept the developer’s word on that.

“Does Apple have to take that further step of saying, ‘No, no really it doesn’t look kosher. Show us some evidence that you have actual permission’?” asked Kay Lam-Beattie, principal of IdeaLaw, who specialise in IT industry intellectual property law.

Lam-Beattie expects Apple to fight this to the very end. “For them, there’s a lot at stake,” she said. “They have to fight it, because if they lose it they have to go back and audit every iPhone app, everything that they’re uploading, everything that they’re distributing through all the channels.”

The Federal Court had ordered the parties into mediation, but a month of negotiations achieved nothing. “They don’t see the damage, and aren’t prepared to settle it,” Murray said. “There’s no meeting of minds at all on how the whole dispute should be resolved.”

Murray says Apple’s lawyers even claimed that the app store was run as a public service on a non-profit basis, a statement that would seem to be at odds with Apple’s recent announcement that they’d paid out $2 billion to developers.

“Based on the 30% commission that they take, they’ve made $860 million profit out of apps,” he said.

The case returns to the Federal Court tomorrow. Arguments are expected to centre on document discovery and the confidentiality of Apple’s proprietary information, including sales figures. Crikey approached Apple for comment — they declined.

*The complete interviews with Jigsaw’s Nick Murray and IdeaLaw’s Kay Lam-Beattie can be heard on this week’s Patch Monday podcast