Industry slams rushed copyright reforms

24 November 2006, Australian Financial Review, By Lucinda Schmidt

The tide of complaints against the federal government's fast-tracked copyright amendments - which are due to pass the Senate in the next few weeks - is swelling as the full ramifications of the changes become apparent.

Although a Senate committee, which tabled its report last Monday - just six days after a public hearing, has been praised for doing a good job in a short time frame, copyright owners and users said the new laws were complex, unworkable and would have negative effects.

"The government's line is that if nobody is thrilled then they must have got it right," said Ian McDonald, the senior legal officer for the Australian Copyright Council, which represents creators and owners of copyright.

"But that's not true. In many cases we're all quite in the dark as to what policy is driving these changes."

The speed of the reforms is dictated by the US Free-Trade Agreement (FTA), which requires Australia to beef-up its anti-hacking laws by January.

But those laws, concerning TPMs (technical protection measures such as passwords), comprise less than 15 per cent of the Copyright Amendment Bill 2006, prompting all sides in the polarised debate to question why other unrelated and major changes have been swept up in the urgency.

"We are dismayed at the indecent haste with which these provisions are being implemented," said Peter Coroneous, the chief executive of the Internet Industry Association, which represents carriers, content creators, web developers, internet service providers and other internet businesses.

"We would like the government to hive-off the non-FTA stuff and have more than a perfunctory consultation process."

The reforms aim to make it easier to enforce the law against blatant copyright offenders, such as pirate DVD factories, while at the same time condoning such things as copying songs from a CD to an iPod and recording television programs to watch at a more convenient time.

"They started out with a good way of thinking, but some of the clarity of that vision has been lost," said Kimberlee Weatherall, the associate director of the Intellectual Property Research Institute of Australia and senior law lecturer at Melbourne University. "We are all increasingly impacted by copyright law, and it's now much harder to understand."

The new laws cover four main areas: fair-use exceptions to copyright infringement; anti-hacking measures to meet Australia's US FTA obligations; criminal sanctions, including strict liability and on the spot fines for some offences; and implementing revised digital agenda laws for copying by universities and other educational institutions.

The complexity of the proposed laws was a major flaw, Ms Weatherall said. The US had one exception to copyright infringement - fair use - which took about five lines of legislation. Australia now had 20 pages, specifying each scenario. "I have lived and breathed copyright for 10 years and I have trouble understanding bits [of the proposed legislation]," she said.

The new criminal sanctions and strict liability are also causing angst. Brian Fitzgerald, the head of the law school at Queensland University of Technology, said no one had a problem with criminal penalties for someone running a factory producing pirated DVDs. But what about a 14-year-old distributing a copy of a song to friends? "This is the criminalisation of copyright infringement on a mass scale," he said, noting that businesses, too, would be affected if they had any unauthorised material on their websites. "Anyone providing digital content online really will have to have very strict processes in place to make sure they don't infringe."

The report of the Senate legal and constitutional affairs committee suggested the strict liability provisions be "re-examined" and a "first-warning" system introduced, but critics said this did not go far enough to restrict the criminal sanctions to bootleggers operating on a commercial scale, rather than inadvertent slips by consumers and small businesses. Other complaints from copyright users concern sloppy drafting, where, for example, the new "format-shifting" rules do not properly allow for the standard way in which consumers download songs to a PC and then onto a digital music player. (The committee recommended some re-drafting).

The copyright owners' interest groups are not happy either. Ian McDonald, from the Australian Copyright Council, opposed the introduction of free format-shifting and "time-shifting" (recording a television program to play at another time) for consumers, although he acknowledged that those battles were probably lost.

Copyright Agency Limited (CAL), which joined forces with publishers and bookseller groups to fight against allowing more free copying for universities and schools, said the new laws weakened copyright protection.

CAL's chief executive Michael Fraser was upset that corporate libraries would be treated the same as public libraries, and schools could cache online material on to a database for students.

He also said cherry-picking the best parts of a document should not be allowed (for example where a teacher uses one module that is an "insubstantial portion" of a text).

His other major concern was that TPMs did not prevent people reading internet pages, provided they were not downloaded, which he believed would threaten the "pay per view" model of some online content providers.

CAL's main opponents, the universities, were reasonably happy with the recommendations of the Senate committee, according to Australian Vice-Chancellors' Committee chief executive John Mullarvey.

The universities had argued that the proposed new fair dealing provisions would damage research efforts, but the committee's report addressed their concerns.