Intellectual Property On-line - Electronic Frontiers Australia

Last Updated: 29 Feb 2008

“.. more than ever before, our copyright policy is our information policy.
As technology has transformed the nature of copyright so that it now applies
to everybody’s everyday behavior, it has become more important, not less,
that our copyright rules embody a deal that the public would assent to.”

– Jessica Litman, Professor of Law.

Current Issues

Fair Use Review

Feb 2008: EFA made a submission to the Attorney-General’s review of sections 47J and 110AA of the Copyright Act 1968 which relate to private use of films, videos and photos.

Copyright Amendment Bill 2006 Deeply Flawed

1 Nov 2006: EFA made a written submission to the Senate Committee inquiry into the Copyright Amendment Bill 2006. The Bill, in its current form, contains a deeply flawed and over-broad implementation of the Technical Protection Measures provisions of the Australia-United States Free Trade Agreement. The Bill will also introduce new purported rights of time-shifting and format-shifting which are much narrower than those existing in the United States, and contains a raft of new criminal provisions designed to make it easier to criminally prosecute Internet users for copyright infringement. These laws could be applied to children as young as 10 years old, and carry penalties up to 5 years jail. See EFA’s Submission to the Copyright Amendment Bill Inquiry.

What You Can Do: This Bill is being fast tracked through Parliament. You can help try to stop it by telephoning (and writing to) your Federal Parliamentary representative/s to express your concerns. To find out who your representative in the House is, and who your State’s/Territory’s Senators are, visit the “Who to Contact” section of EFA’s site.

Recent History

Fair dealing reform

On 14 May 2006 the federal Attorney-General announced a range of amendments that would be made to the Copyright Act relating to fair use issues. The announcement stated that, amongst other things, the new laws would:

Make it legal for people to tape their favourite TV or radio program and play it at another time (but only once, after which it must be deleted)
Legalise “format shifting” of material such as music, newspapers, books – meaning people can put their CD collection onto IPods or MP3 players (but not DVDs onto portable players)
Allow the use of copyright material for parody or satire

These changes are welcome in so far as they go, although it seems Australia will not be getting a flexible, general-purpose fair use exception. EFA is disappointed at this decision, as we have argued for the introduction of a fair use exception in numerous submissions to the government.

The adoption of an open-ended fair use type exception was also recommended by the report of the Joint Standing Committee on Treaties into the Australia-United States Free Trade Agreement, the recommendations of the Labor Senators in the report of the Senate Select Committee on the Free Trade agreement between Australia and the United States of America, and by the Copyright Law Review Committee in their 1988 report into Simplification of the Copyright Act.

At the time of the Minister’s May 2006 announcement, the government was “still considering” what to do about the need to circumvent copy protection for the purposes of making fair dealing or format shifting copies. In light of the restrictions imposed by ‘anti-circumvention’ laws, Linux Australia is coordinating a campaign for greater consumer control over the use of legitimately purchased music. EFA still supports a broad-based exception to anti-circumvention laws so that consumers can actually exercise their rights.

Such an exception was recommended by the House of Representatives Standing Committee on Legal and Constitutional Affairs Review of Technological Protection Measures Exceptions under the Free Trade Agreement.

Previously, in July 2005, EFA sent this submission to the Commonwealth Attorney-General’s review of fair dealing and other copyright exceptions. We believe that Australian law should have a flexible fair use defence and should explicitly allow ordinary consumer uses such as time-shifting, format-shifting and making back-up copies. EFA has been concerned about the need for reform of Australia’s fair dealing laws for some time. One board member wrote about fair use freeing up technology and gave a talk about why we should put fairness into copyright use.

Whilst EFA welcomed the review, one worrying aspect of the process was the Department’s apparent reluctance to publish the submissions that were provided to it. EFA’s initial requests about publication were brushed off by the Department with a we-might-publish-them-one-day type answer. However, a formal application under the Freedom of Information Act seemed to do the trick, because shortly after we sent it in they told us they were publishing them straight away after all. EFA is also uncomfortable with the “further targeted round of consultations” which were undertaken. Not only do we not know what this involved, we don’t know who was involved.

At present, fair dealing in Australia is a set of exceptions that allows copyright material to be legally copied to a limited degree. These exceptions apply to research and study, review and criticism, reporting the news and giving professional (legal) advice. There is no general exception that permits private home copying of copyright material, such as time-shifting television shows or converting music into different formats. There is a very specific exception that may allow the copying of live television broadcasts, but this would apply to a very small number of shows (and would not include those shows that are “recorded live”).

In contrast, the fair use defence in the USA is an open-ended exception. It applies when people copy material for the purposes identified in Australian law, but can also apply to other copying which falls within the scope of a “fair use”. The US fair use provision enables things such as parody, time-shifting, thumbnailing and format-shifting so long as it is in circumstances that are fair.

Recent notable litigation

Universal v Cooper. A number of music companies claimed that Stephen Cooper, the Australian operator of a website called mp3s4free.net, had infringed their copyright by linking to unauthorised mp3 music files. The music companies also alleged that Cooper’s ISP, the ISP director and an ISP staff member were liable for infringements.

The Federal Court decided that Cooper and the other respondents were liable for “authorising” copyright infringement. The parties have lodged appeals, so the decision is likely to be reconsidered by an appeals court some time in 2006.

One important aspect of the decision is that the act of merely linking to an infringing file is not copyright infringement. The Australian Copyright Act gives copyright owners the exclusive right to “communicate” their work to the public. The court decided that this right had not been infringed by the links on Cooper’s website because “Cooper has not made the sound recording available to the public or electronically transmitted it to the public”.

However, copyright owners also have the exclusive right to “authorise” others to communicate their works to the public. The court found that Cooper had authorised the infringing acts of the users of his website; that is, the downloaders and uploaders of the infringing music files. This was in part because the court found that Cooper’s website was “clearly designed to, and does, facilitate and enable … infringing downloading”. The judge decided that Cooper “knowingly permitted or approved the use of his website in this manner and designed and organised it to achieve this result”.

The court also found that Cooper’s ISP, the ISP director and an ISP staff member had authorised copyright infringements. Again, it was not the mere existence of the links to the music files that made the ISP parties liable. Some of the factors that led the court to holding them liable included:

The ISP was aware of problems concerning the website and had told Cooper to take down the website.
The employee was “knowingly involved” with the maintenance, establishment and operation of the site.
The ISP did not intend to take any action in relation to website having regard to the perceived substantial financial advantage that the ISP derived from hosting the site.

Update November 2006: An appeal against the judgment of the Federal Court was heard by the Full Court of the Federal Court in August 2006, and we are currently awaiting the outcome of that appeal.

Universal v Sharman. The Federal Court of Australia decided that Sharman, through its conduct and its distribution of the Kazaa software, was liable for authorising copyright infringements committed by the software’s users. EFA, the Australian Consumers Association and the NSW Council for Civil Liberties made submissions to the court as amicus curiae (or friend of the court). The amicus submission was prepared with the assistance of the Communications Law Centre in Melbourne.

The Full Federal Court (an Australian intermediate appellate court) heard an appeal against the decision in late February 2006. EFA and the Australian Consumers Association applied to make ‘friend of the court’ submissions. The Court granted us ‘intervener’ status with the role of assisting the Court in its task of resolving the issues raised by the parties.

With pro bono representation from the Communications Law Centre, EFA addressed issues regarding the interpretation of the Copyright Act. We believe that the law does not impose a duty on providers of communications technologies (such as P2P) to design or modify their products so as to enforce others’ copyright.

Update November 2006: Unfortunately, the parties to the appeal reached a settlement before the decision of the Full Federal Court was handed down. EFA is disappointed that the initial judgment of the Federal Court, which we maintain was wrongly decided, will not be subject to appellate scrutiny.

Contents: