ON LINE  opinion  - Australia's e-journal of social and political debate

Copyright vision: copyright jails

By Brian Fitzgerald
Posted Thursday, 26 October 2006

Broad ranging amendments to the Copyright Act which (in part) implement obligations under the Australia-US Free Trade Agreement (AUSFTA) were introduced into parliament on October 19, 2006. They serve to bolster the power of copyright interests through the introduction of a series of new criminal offences and the extension of prohibitions on circumventing technological locks. They “balance” this with the introduction of some narrowly defined user rights.

The criminalisation of copyright infringement

The ramping up of criminal responsibility for copyright infringement follows a trend most explicit in the US of prosecuting and jailing copyright infringers.

This is a major shift for copyright law which has traditionally remedied infringement with civil liability, such as damages. The criminalisation of copyright infringement which has been evolving over the past few years makes sense when we think of organised crime syndicates producing and selling large quantities of CDs and DVDs. However, it seems outrageous when we think of the possibility of a 14-year-old child being labelled a criminal for distributing an infringing copy of a song in a way that “affects prejudicially the owner of the copyright”.

Further, imagine a 14-year-old girl videoing herself lip-synching to her favourite pop tune and uploading this to a video sharing website like YouTube. This is an activity that copyright owners around the world are already saying is something that is against their interests.

Under the new regime the mere doing of this act has the real potential to lead to a significant fine and if it can be shown that such an act was accompanied by negligence or recklessness, the 14-year-old child could be in even more trouble.

The introduction of “strict liability” offences (meaning just doing the act regardless of intent is enough) and summary offences that could lead to imprisonment where someone is merely “negligent” in infringing, make the new copyright landscape alarming, particularly as almost everything we do nowadays brings us into contact with copyright material.

These new provisions have the potential to make everyday Australians in homes and businesses across the country into criminals on a scale that we have not witnessed before. Add to this remodelled evidentiary presumptions that favour copyright owners (in many cases large multinational corporations) and you might be left thinking whether the information superhighway is worth the risk.

One thing that the Internet revolution has shown is that there is an enormous economy in services that provide us with the ability to access and use information. Some of the highest valued corporations on the planet are information service companies like Google, MySpace and Youtube. These businesses dared to do something different and provided interesting new services and spaces; yet any new Australian start-up trying to emulate similar business models after January 1, 2007 will most likely find themselves before the criminal courts or paying out substantial on the spot fines.

Innovation relies on diversity, experimentation and good old fashioned luck. It remains to be seen whether these kinds of success factors can survive this new suite of criminal provisions. If we are to be competitive in the global services economy, this seems an odd way to achieve it.

When you consider that a 10 to 14-year-old child can be held criminally responsible if the prosecution can show they knew what they were doing was wrong, this heavy handed approach to copyright infringement is far from satisfactory. What next - 10 or 12-year-olds fronting criminal courts or being slapped with significant on the spot fines because they distribute a copy of a song they ripped off their latest CD to a group of their friends?

The answer to this kind of activity is not to criminalise the acts of Australians but to educate them and to encourage the existing businesses to adapt their business models, as Apple has with iTunes, to more readily accommodate the practices of the digital generation. A prosperous Australia will not ride on the back of making large numbers of our young people criminals for activities they regard as everyday social practice.

User rights and liabilities

Many Australians believe that in signing up for the AUSFTA we should have received not only the more onerous copyright term and infringement provisions of US law, but also a liberating US-styled fair-use provision.

Fair dealing and fair-use provisions allow people to, for example, reproduce and communicate material in certain circumstances without permission from the copyright owner. They are seen by many as an engine of free expression as well as a driver of creative innovation.

The Australian fair dealing provisions are very narrow (when compared to their US counterpart) and one might have thought that by not adopting a broader fair use provision we further disadvantage ourselves in the new knowledge economy. US creators and innovators are not restricted in this way - why should we?

To make it even worse, the new provisions actually tighten Australia’s existing fair dealing provisions for research and study in relation to the reproduction of literary, dramatic and musical works, taking away the flexible provisions that currently allow researchers to copy material in ways that are “fair” and replacing them with strict rules that limit copying of most hardcopy and electronic documents only to specific amounts. One page more than this amount, no matter how obscure or difficult the book is to obtain, and you risk liability.

Once again this puts Australian researchers at a disadvantage in comparison to researchers in the US and in many other countries worldwide. It also puts them at a disadvantage in relation to Australian lawyers, news reporters and even film critics, who all keep their flexible fair dealing provisions under the new legislation.

This amendment has not been widely discussed and was something of a surprise when it appeared in the Exposure Draft. It is a major break with the tradition we are used to in Australia, and subverts the spirit of the Backing Australia’s Ability agenda by increasing the barriers to students and researchers accessing the knowledge that is necessary for further innovation.

The Federal Government has granted consumers some latitude by introducing some new exceptions, including exceptions that will legalise time shifting (for example, recording a television program to watch later) and format shifting (for example, copying a CD onto a computer). However, even these exceptions only apply in very specific circumstances, and are so complex (each exception is over a page long) they will not be easily understood by anyone other than copyright lawyers.

One subset of the new exceptions, which includes the long-overdue exception to allow parody and satire, adopts almost verbatim the wording of the nebulous and controversial “three-step test” created under the international Berne Convention. This means they will only apply where the person is able to prove that their actions are a “special case”, that they do not conflict with normal exploitation of the copyright material, and that they do not unreasonably prejudice the legitimate interests of the copyright owner.

Whether this test is rightly suited for the fast-paced world of Internet innovation is something for further debate. The more immediate concern is that we have been lumped with a parody and satire provision that really needs to be taken before the courts before we have any sense of what it will mean. In a liberal democracy this level of censorship of social commentary is lamentable.

Technological protection measures

Under the AUSFTA, Australia agreed to expand liability for circumventing technological measures that are designed to protect copyright. Previously activities such as making, dealing and providing devices that allow you to circumvent these technical locks had been the focus of liability; now the act of breaking a technological protection measure (TPM) could lead to a significant fine.

The 2005 landmark High Court case of Stevens v Sony highlighted that anti-circumvention law (as it stands before these proposed amendments) requires that to receive protection under copyright law a TPM has to “prevent or inhibit copyright infringement”.

When the Exposure Draft of the proposed amendments was circulated three weeks ago it retained the important notion that a TPM is a device that prevents or inhibits copyright infringement. However when the legislation was introduced to parliament last week that requirement had disappeared. Now any technology used by a copyright owner “in connection with the exercise of copyright” will be protected - even if it does nothing to stop infringement.

This has enormous consequences for Australian consumers. What the High Court decided in Stevens v Sony was that copyright owners should not be able to invoke copyright law to enforce TPMs that control the “use” of lawfully acquired copyrighted material in ways that do not amount to copyright infringement. In doing so the High Court highlighted the importance of ensuring Australians have the liberty to use their legally acquired property as they wished.

In three short weeks the Stevens v Sony principle has gone from pedestal to garbage dump. The law as currently drafted will give copyright owners wide-ranging powers to restrict the use of copyright materials as they see fit. Specific exceptions for the regional coding of DVDs, and the restriction of generic goods and services notwithstanding, there is now enormous scope for copyright owners to control the habits and economy of everyday consumers in ways that we have not dreamed of before.

Under Stevens v Sony if I purchased a copyright item at the store I was free to use it in any way so long as I did not infringe the rights of the copyright owner to, say, reproduce or communicate it. Once this new legislation passes my user rights (outside of the rights to reproduction and communication) over that very same copyright item will potentially be subject to the wishes of the copyright owner. Within the boundaries of competition law, they will have broad scope to control the way I use that item in everyday life.

This is a fundamental reshaping of consumer law through the guise of copyright. The loser here is the Australian consumer.

International law, the AUSFTA as interpreted by the Australian Parliament’s Legal and Constitutional Affairs Committee and American case law on the point are all clear that we do not have to go this far. Why then has the government so abruptly abandoned the consumer friendly principle of Stevens v Sony that was still evident in the legislation three weeks ago, with no public debate or explanation?

Australians deserve to be angered by this chain of events and should be extremely concerned at what this promises. Consumer sovereignty has been eaten away once more to the benefit of very large corporations.

While we need the success of our corporations to fuel capitalism it should not come at any cost.

Put simply, corporations cannot always be trusted to act in the best interests of everyday people. That is why laws impose limits on them in relation to things like consumer rights, workers rights and environmental rights. Here again the law makers must act to temper the unregulated and unbridled power of copyright corporations.

To fail to do so will mean a further encroachment on consumer sovereignty in the name of copyright protection, when copyright infringement in any traditional sense of the word is not at stake. It is as if we are saying to the entities that earn millions of dollars from the exploitation of copyright “we will give you the right to restrict the lawful activities of consumers as a way of insuring your bottom line”. That seems to be going too far.

The only way that Australia will survive such a bold attempt to reduce our freedom and quality of life is for ordinary Australians to actively engage in this debate - go online, talk to family and friends about it and voice your opinions to your local member.

We have little more than a few weeks before parliament will decide what law will be implemented. Educate yourself on these issues, as they promise to fundamentally alter our rights, our economy, and the way we use digital technology.

A minimal solution is to:

Let us not build Australia into some sort of copyright jail; let us prosper in the new economy with copyright vision.

Professor Brian Fitzgerald is Head of School of Law, Queensland University of Technology. He is co-editor of one of Australia's leading texts on E-Commerce, Software and the Internet - Going Digital 2000 - and has published articles on Law and the Internet, Technology Law and Intellectual Property Law in Australia, the United States, Europe and Japan.

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