nic.suzor.net

Scot Morris (APRA), Jessica Coates (cc-au), Elliott Bledsoe (cc-au), Frank Rodi (APRA). Not pictured: Paul Draper, Griffith University. More photos of the event.

This afternoon Creative Commons Australia hosted a music industry forum as part of Create World 2007.

The position in Australia is that APRA takes an assignment of the performing rights in the entirety of their members' music, past and future. This technically prevents APRA members from licensing their own music under Creative Commons licences (or any other open content licences)

Interestingly, Scot Morris (APRA) noted that “APRA artists have been releasing music under Creative Commons licences”, and noted that APRA wasn't going to stop people from doing so.

The major source of incompatibility between Creative Commons licences and APRA's blanket licences is that APRA collects for all public performances and communications to the public, while the CC non-commercial licences distinguish between commercial and non-commercial uses.

This leads to a position where APRA would normally collect on, for example, educational uses, whereas a musician who released their song under a CC NonCommercial licence would not be entitled to collect royalties for those classes of performance.

If we can get to a position where we can agree on what types of users are commercial and which are not, we would be closer to solving this problem.

Scot noted that APRA is increasingly able to collect detailed statistics of each song played by its major licensees. With some modifications to their database, they should theoretically be able to exempt agreed non-commercial uses from the tallies.

The real problem here, and what APRA are concerned about, is a possible diminishing of their bargaining power. APRA do not want to be in a position where their licensees can claim discounts on their licence fees (or totally avoid them).

This is the collective bargaining problem – if some artists start to freely licence their music to some users in return for greater distribution, it may have the effect of lowering licence fees.

Luckily, this appears to be a non-issue, because in Australia, the Copyright Tribunal currently sets the licence fees which collecting societies can charge.

Some artists may choose to give away their music to some users for some purposes on a non-remunerated basis. This may or may not weaken the position of the collecting society and the collective bargaining position of artists. This, however, is a much broader issue than Creative Commons licensing.

What we were mainly concerned with this afternoon is not about Artists who want to opt-out of the collective model, but about artists who want to provide some certainty to non-commercial users. Scot Morris noted that neither the record labels nor the collecting societies in Australia were eager to sue non-commercial users. The problem with this implied forbearance is that it provides no certainty to users and future creators. Admittedly, people mostly don't get sued until they are making money – but the threat is still a significant deterrent in many cases. The example that quickly springs to mind is Dean Gray, a (half-Australian) duo who remixed Green Day's American Idiot album, dubbed American Edit on a non-commercial basis, and were quickly ordered to remove it from the web. There are countless other examples.

Clearly, certainty is needed amongst non-commercial creators. Clearly, some artists are interested in providing that certainty through Creative Commons NonCommercial licences. The big problem is that they can't do that and simultaneously have APRA collect for them on their behalf. This is not about reducing the bargaining position of APRA, because non-commercial licensees typically pay a very small fee. It's about transaction costs. APRA are not willing to spend their members' resources to investigate whether a use of a CC-licensed track is commercial or non-commercial.

The problem lies in reducing this transaction cost to a point where it is outweighed by the benefit that non-commercial creators receive by having certainty in their actions.

I believe three things here:

• certainty of non-commercial artists is extremely important – a simple 'understanding' that they 'probably' won't be sued unless they make the big time leaves them far too vulnerable;

• the transaction costs on APRA's side do not have to be so big – if we can agree on which users are entitled to rely on a non-commercial licence, it means one more bit in APRA's database which notes that a particular track has been freely licensed for non-commercial uses, and APRA can simply not collect for those uses. The sampling that APRA has been using since its inception, and which is now much easier with increased technology, can already handle this;

• the transaction costs of non-commercial artists in obtaining certainty is currently far too high, and can be effectively reduced by the provision of standardised licences like the Creative Commons licences.

I have a suspicion that a significant factor influencing APRA's reluctance to more closely examine this issue is that they don't want to consider having to reduce their licence fees to take into account users who use CC-licensed music. This certainly came out today, where the main concern seemed to be that Murdoch and Google would be able to exploit musicians by using Creative Commons licensed music. While this fear may be well founded, it is not relevant to the current discussion – neither Google nor Murdoch are non-commercial users; if we confine our analysis to the people who want to use both APRA and Creative Commons licensing, we are only concerned with the NC users. As long as we have a working definition of 'non-commercial' (something that CC has been working on, but needs finalising), this should be able to work with a minimum of hand-wringing.

In summary:

• If the real problem is the differing interpretations of when a use is commercial or not, lets fix it;

• If, on the other hand, the real concern is about a loss in bargaining power, then that issue is relevant to the broader trend for artists to provide non-renumerated licences, and is not confined, or indeed relevant, to the discussion of non-commercial licences. It's a broader issue which involves convincing artists that it is in their best interest not to provide any non-remunerated licences, in the face of their demonstrated determination to do so.

I had a great day campaigning for the Democrats on Saturday. This was my first campaign, and I'm still a bit hoarse from talking all day. I was really impressed with the support that members of all parties had for the Democrats and Andrew Bartlett – I received positive comments and well wishes from nearly every campaigner on the day. I was interested to see how voters responded to the way I was campaigning, which was a bit more aggressive than any of the other parties' campaigners. I was afraid that being too aggressive would turn people off, but I think I was able to convince some people of the benefits of an independent Senate.

[ ed: I've removed inaccurate polling results ]

The message seems to be that there is a significant proportion of voters who haven't made up their mind on polling day, and that vocal campaigning works. This confirms to me that the big problem lies in the sheer difference in size of the major parties. The ALP campaigners were particularly out in force on Saturday, followed closely by a small army of coalition campaigners. This really puts minor parties at a big disadvantage – after being greatly disadvantaged for the whole campaign (plus the months of informal campaigning) by lack of funding for advertisements, the minor parties are also significantly underrepresented at the polling booths themselves.

I was really impressed by the youdecide2007 people this election – I heard a lot of positive feedback about the informative and unbiased way they presented the candidates. I think that these sorts of organisations are perfect for restoring some balance in a dichotomous two party system.

Along with grass-roots activists like GetUp!, I have some hope for minor party campaigning through technology use in the future. The internet provides a great platform for distribution, but eyeballs are still a scarce resource – intermediaries play such a big roll that it will be difficult to achieve much balance without groups like youdecide and GetUp!. These are the focal points we need to work on in the future.

I'm probably a little less impressed with the social networking sites – I don't really have a strong feeling about how much they influence voters, but I suspect that it's much less than we think. These sites, along with the video sharing websites, are great hosts for content, but less useful for disintermediarisation. I know that people will go look for the content if they know it's there, but I'm not sure to what extent they work as viral marketing tools.

More photos are available (CC BY-SA.

Yesterday I attended a rally organised by the QUT Queer Collective. Two members of the QUT Queer Collective had their relationship recognised under British law to protest the ongoing refusal of queer rights in Australia.

I'm disappointed that we still have to have these events. The recent HREOC report clearly shows that we have unacceptable economic discrimination based on sexual preference. Following the report, Labor have committed to removing legal discrimination on entitlements.

The problem is, this goes nowhere near far enough.

At the rally yesterday, Andrew Bartlett pointed out that both the Coalition and Labor still refuse to support gay marriage. Both the Coalition and Labor continue to support discrimination based on sexual preference that is pervasive and dangerous to our society, and particularly to those against whom it is targeted.

Bartlett echoed the statements he made during debate three years ago when a law banning gay marriage was passed with bi-partisan support.

We need to do three things (The Coalition has refused to do any; Labor suggests that it will do only one):

• Immediately remove legislated economic discrimination, as highlighted by the HREOC report;

• Remove all other legislated discrimination – including the ban on same sex marriage; and

• Keep working to reduce and overcome discrimination in society generally. Removing legislated discrimination is only half of the solution to removing the extremely dangerous discrimination that exists in Australia today.

Photo by jasonesbain CC-BY 2.0.

There's been some interesting comments on the last taser post I made.

I understand that police have a difficult time arresting resisting subjects, but it's seems really difficult not to conclude that tasers are being used more for convenience than to actually prevent harm to police officers.

In this example, a man is given a speeding infringement notice. He asks the police officer to tell him how fast he was going, and refuses to sign without being told that information. He also says he wants to go look at the speed limit sign, which he believes he did not exceed. When he refuses to sign, the officer doesn't answer him, but purports to arrest him (it doesn't appear that he was told either that he was being arrested or why). When he refuses to turn around with his hands behind his back, he is shot in the back with a taser. This causes great distress to him (obviously), but also his pregnant wife.

I can't comment on whether this was a legitimate arrest – my feeling is that generally people have a right to know what they've been accused of, but mainly it seems as if he was arrested for not complying with police orders (did he have a right not to?) – it doesn't appear that he was legitimately arrested here, but I could be wrong. My concern is that this video shows how easy it is just to taser someone rather than take positive steps to calm a situation down. The man wasn't aggressive, he was disobedient. A good police officer should try talking rather than resorting almost immediately to extremely painful force.

The question here isn't whether tasers are justified in some circumstances. The question is whether tasers are being used too readily; whether there are adequate guidelines and training in place for their use; and whether we are going to sanction their use as a means of quelling dissent rather than avoiding harm to officers or the public. Faced with a question as to whether you have the right to arrest someone, and whether you've followed the correct procedures, should you answer them or simply taser them and arrest them for disobedience?

Edit: the incident is under 'expedited' review. Utah Patrol spokesperson Trooper Roden says that “Troopers can use a Taser if someone is a threat to themselves, or others, and other means of control are unreasonable” (emphasis added).

Edit (thanks to Dale for examples):

• Here's a link to a story a few days ago where another man was killed after being hit by a taser.

• another example – a man tasered because he wasn't responding to police because he was in a **diabetic coma**

• an out-of-control bail bondsman fired two taser shots at a playground at a pizza parlour, missing one girl and grazing another

• A man from Portland Oregon is suing police for unlawful seizure with excessive force after officers fired a Taser and bean bag rounds at him when he refused to stop filming a warrantless search of his neighbour's property last year.

• "Wheelchair-Bound Woman Dies After Being Tasered 10 Times"

• Five bailiffs taser a man in court

There's one week to go before the election. I just want to make two points:

It is pure arrogance for a government, any government, to believe it has all the answers and everything right the first time. We need a Senate which is able to review legislation and come to common sense decisions.

A working democracy needs real debate, not simple votes along party lines.

Andrew Bartlett has worked tirelessly for the last ten years to bring a voice of reason to the Senate. The Democrats have consistently been involved in the Senate Committees, where the real day-to-day work gets done. By comparison, the Democrats senators have been active permanent members of 21 different Committees, while the Greens have been active permanent members of only 2.

We need an independent voice in the Senate, but we do not need a hostile Senate. Andrew Bartlett has demonstrated over ten years a commitment to the legislative process and true democracy. He has been prepared to reach sensible compromises to make better laws, rather than simply blocking or not participating in the deliberative process.

The vote next week is much closer than the news would have you believe, and Queenslanders can't afford to lose Senator Bartlett's voice of reason in the upper house. Whichever way you vote in the lower house, please vote to re-elect Senator Andrew Bartlett.

A Polish man, Robert Dziekanski, unable to find his mother for several hours, and unable to communicate with anyone in Vancouver International Airport, becomes distressed.

The Royal Canadian Mounted Police arrive to investigate the disturbance, and approach the man. Everyone is calm, the man throws his arms up in a gesture for surrender, and takes some steps backwards, apparently disgruntled. Whereupon the RCMP taser him. The man falls to the ground, screaming, and four officers jump on him and kill him (video).

Enough. This has to stop. Tasers are being used far too often, as a tool to restrain or subdue people. It is currently far too easy for police to use tasers when there is no clear need to do so.

It is preferable for a policer officer to use a taser than a gun in a situation where there is no other choice. It is NOT acceptable for a police officer to use a taser for convenience, and particularly not against an unprotesting man.

The linked video appears to show nothing other than a cold blooded murder. There was no question of provocation here, no question of reasonable force.

Links:

• Truth, not Tasers

• Stop Taser Abuse Today!

• Amnesty Internation report on Excessive and lethal force – deaths and ill-treatment involving police use of tasers

(Photo from Daily Telegraph, extracted from Seven's own broadcast.)

Channel 7 obtained a preliminary injunction to prevent the Chaser from broadcasting video it recorded whilst allegedly trespassing on Channel 7's premises.

Paragraph 14 of the judgment notes that Channel 7 had planned to show its own version of events on Today Tonight, which concerned Barnett J. Channel 7 agreed to give an undertaking that it would not broadcast that story until after the determination of the substantive proceedings.

It appears that Channel 7 did, in fact, broadcast its version of events. Video is available from idents.tv.

It seems unreasonable to grant an injunction based upon publication of confidential information, when the plaintiff itself plans to publish that same information shortly afterwards. Obviously in this case it is not the confidential information itself which Seven sought to protect, but the right to be first to show the story, and the right to depict events in the best light possible.

Indeed, the injunction appears to have been granted at least in part on the basis that Channel 7 would not itself broadcast the footage. Dale Clapperton wonders whether the broadcast would place Channel 7 in contempt of court?

To make matters worse, the segments that Seven broadcast did in fact contain personal information, including telephone numbers, of Today Tonight staff members.

The obiter in ABC v Lenah that Seven relies on in its claim for ownership of copyright in the tapes requires either a degree of confidentiality or of loss to goodwill. It would be unfortunate if a general principle were to emerge that all video content which is taken on private property without permission is to be owned beneficially by the owner of the property. If a case cannot be made out for an action in breach of confidence, it would not seem desirable to provide a remedy in the tort of trespass. One of these actions is inherently suited and balanced to protect confidential or secret information, and one of these is not.

Stay tuned for the judgment in the substantive proceedings.

Brett Solomon from GetUp! and Andrew Bartlett at the BlogOZ conference we hosted last month. Photo by Felix42 under CC BY-NC-SA 2.0.

Since obtaining a majority in the Senate, the Howard Government has consistently and irresponsibly acted to turn the Senate from a house of debate into a rubber stamp.

• Sitting days are lower than ever, and the amount or complexity of legislation to be considered has not decreased

• Very few amendments from other parties have been accepted. The Government refuses to debate, let alone alter its proposed legislation (20 since July 2005, compared to 215 in 2004).

The majority that Howard promised to use responsibly has consistently been used to push controversial legislation through without debate. Examples include the full privitisation of Telstra, work choices, the Northern Territory intervention, harsh immigration laws, and over-broad and redundant anti-terrorism laws.

I don't like the content of a lot of these laws, but I am even more concerned about the process.

Democracy needs reasoned debate. Howard's government has become too scared to put its policies through any form of democratic debate. The Howard Government's persistent refusal to even consider amendments to its proposed legislation is pure arrogance and myopia.

Howard's majority was not a mandate to push any conceivable piece of legislation through both houses of parliament. Our system has historically placed the Senate in a very important role in examining potential legislation and working with the government of the day to create better laws for Australia.

I'm voting for the Australian Democrats and Andrew Bartlett in the upcoming election to help restore an independent Senate. The Democrats have a fine history of examining proposed legislation without getting caught up in party politics, and this is what I believe Australia needs most right now.

For more information, see:

• Australian Democrats "Senate Watch"

• GetUp! campaign "Save Our Senate"