In a forthcoming issue of the UNSW Law Journal, Paula Dootson and I write about the effect of restrictive copyright licensing practices on the willingness of consumers to infringe copyright. This builds on Paula’s PhD work, and we present qualitative evidence to support the common intuition that the lack of access to legitimate content distribution channels increases the willingness of consumers to infringe copyright. But surpisingly, consumers do want to pay for access at a fair price if they can, and they’ll go to significant lengths to do it (like setting up a VPN to access netflix or itunes from another region).
We’ve just lodged two submissions to the Attorney-General’s Department consultation on Online Copyright Infringement.
- Copyright infringement in Australia at the moment should be thought of as predominantly a market problem, and we should look for market solutions.
Graduated response schemes are unlikely to be effective, but they pose serious risks for due process and the rule of law.
The proposed changes would create serious uncertainty in authorisation liability, while at the same time probably won’t actually achieve the Government’s goal.
There’s no evidence that website blocking is likely to be effective.
The second submission is on behalf of Creative Commons Australia and the Organization for Transformative Works. This one focuses on the proposal’s likely chilling effects on free expression and the flow of knowledge and culture.
I should also say how incredibly proud I am of QUT IP law students in putting the first submission together. They worked really hard over the short review period and produced a really good piece of work.
Originally posted on The Conversation by Nicolas Suzor and Alex Button-Sloan.
The Australian Government has proposed Internet Service Providers (ISPs) should monitor and punish Australians who download and infringe copyright.
In a discussion paper circulated by Attorney-General George Brandis, and leaked by Crikey last Friday, the government proposes a sweeping change to Australian copyright law that would force ISPs to take steps to prevent Australians from infringing copyright.
What these steps might be is very vague. They could include blocking peer-to-peer traffic, slowing down internet connections, passing on warnings from industry groups, and handing over subscriber details to copyright owners.
The move comes in response to claims that Australians are among the biggest downloaders of films and television series. Under intense pressure from Hollywood and Foxtel, the government wants to do something to combat copyright infringement.
One of the most concerning things is that the agreement would require Australia to give
An unclear, potentially extensive undertaking to ‘provide measures’ to ‘curtail’ ‘repeated copyright infringement on the Internet’ (note – not copyright piracy; not copyright infringement causing substantial prejudice to copyright owners – but any repeated infringement);
This type of wording hints at an obligation to legislatively overturn the iiNet case, or to introduce something like graduated response (three-strikes) or website blocking. As Kim points out, the provision wouldn’t actually require this, but including the language has strong rhetorical force.
Let’s not mince words; this is just stupid. We don’t have the evidence that stronger copyright laws are required, we don’t have evidence that graduated response works, but it is problematic for due process, and there is absolutely no reason, if it is required, that we should entrench these kind of obligations in bilateral trade agreements, where we can’t easily modify them. This isn’t evidence-based policy; it’s abdicating our legislative responsibility to serve the interests of foreign rightsholders. It really makes no sense.
Originally published in The Conversation by Nicolas Suzor and Suzannah Wood.
An estimated 285 million people worldwide are visually impaired. Some 90% of those live in developing nations, where less than 1% of the world’s books are available in a form they can read.
In developed countries, the situation is only marginally better: only around 7% of the world’s books are accessible to print-disabled people.
The right to read is part of our basic human rights. Access to the written word is crucial to allow people to fully participate in society. It’s important for education, political involvement, success in the workplace, scientific progress and, not least, creative play and leisure. Equal access to books and other cultural goods is also required by international law.
The technology now exists to deliver books in accessible electronic forms to people much more cheaply than printing and shipping bulky braille copies or books on tape. Electronic books can be read with screen readers and refreshable braille devices, or printed into large print or braille if needed.
Now that we have this technology, what’s been referred to as the global “book famine” is a preventable tragedy.
Originally posted in The Conversation by Nicolas Suzor and Eleanor Angel.
More than 40 years after the release of Stairway to Heaven, English rock band Led Zeppelin are facing allegations that its iconic guitar riff was stolen from Taurus, a song released in 1968 by the American rock band Spirit.
The two riffs are clearly similar: they share a four-bar instrumental guitar passage with similar harmony, tempo and stylistic features. Businessweek has created a short game where you can test your skill at telling the two apart.
But is this enough for Spirit to demand a share of the credit – and the royalties?
I have a new article in press with the Harvard Journal of Law & Technology. I’m interested in comments on the post-print draft. Abstract:
Modern copyright law is based on the inescapable assumption that users, given the choice, will free-ride rather than pay for access. In fact, many consumers of cultural works – music, books, films, games, and other works – fundamentally want to support their production. It turns out that humans are motivated to support cultural production not only by extrinsic incentives, but also by social norms of fairness and reciprocity. This article explains how producers across the creative industries have used this insight to develop increasingly sophisticated business models that rely on voluntary payments (including pay-what-you-want schemes) to fund their costs of production.
Originally posted on The Conversation, by Suzannah Wood and Nic Suzor.
China’s biggest search engine has a constitutional right to filter its search results, a US court found last month. But that’s just the start of the story.
Eight New York-based pro-democracy activists sued Baidu Inc in 2011, seeking damages because Baidu prevents their work from showing up in search results. Baidu follows Chinese law that requires it to censor politically sensitive results.
But in what the plaintiffs’ lawyer has dubbed a “perfect paradox”, US District Judge Jesse Furman has dismissed the challenge, explaining that to hold Baidu liable for its decisions to censor pro-democracy content would itself infringe the right to free speech.
The ALRC Report on Copyright and the Digital Economy was released earlier this month. It’s an extremely thorough and well-reasoned analysis of exceptions in Australian copyright law. The main thrust of the report is to recommend that Australia introduces fair use; in the alternative, the ALRC recommends consolidating the fair dealing defences and expanding the category of uses to which they can apply.
The ALRC adopts a conservative approach here. The suggestions it makes are by no means radical – usually, the ALRC suggests that existing Australian copyright jurisprudence will inform any new law, and the report steers well clear of making any suggestion that fair use would reverse some of the more controversial decisions.
This is the report’s greatest strength. The reasoning is unassailable, and the reforms suggested by the ALRC are mostly in the relatively minor form of clarifications, simplification, and fixes to issues that are commonly understood to be problematic in the current law. The ALRC seeks to build consensus on this limited approach – in such a way that pragmatic law reform might be politically feasible. Where there is real disagreement, the ALRC punts to the courts (in terms of identifying whether existing cases would have different outcomes under fair use) or to future law reform processes.