nic.suzor.net

There is always a danger when intermediaries are pressured to act in the interests of copyright owners. There is little oversight, large risks to privacy, and little incentive to refuse in the interests of subscribers. Pressure on intermediaries really alters the copyright balance, making it much easier for copyright owners to attack users, shrinking grey zones and chilling speech, and abrogating the presumption of innocence.

In this environment, it is always reassuring to hear that ISPs will not bow to the pressure that is brought to bear by the copyright industry. The Age is today reporting that BigPond have strongly opposed the pressure from AFACT.

Last week I had the opportunity to meet again with Peter Coroneos, CEO of the Internet Industry Association at a briefing hosted by QUT Law Faculty.

Peter raised some points of oppisition by Austrlaian ISPs against the 3 strikes policy which is being pushed by MIPI and AFACT.

It seems that a formal agreement has stalled. I am still, however, highly concerned by informal agreements where ISPs voluntarily agree to play the role of copyright enforcers on behalf of the copyright industry. In the US, we are now seeing the copyright industry issuing what they call “settlement letters” to ISPs (mainly universities), purporting to identify users who are involved in copyright infringement. In fact, the letters have been shown to be highly inaccurate. The letters threaten the individual identified by the university with the initation of a copyright lawsuit if the user does not settle immediately, through an easy to use settlement gateway (which accepts credit card settlements of between $3000 and $11000 with a minimum of hassle). The process generates significant revenue for the copyright industry, and practically eliminates the cost of bringing lawsuits and proving both infringement and damages. Faced with the prospect of an up-front settlement or an expensive trial process, rational users may often chose to settle, even if they are not legally liable.

I asked Peter Coroneos if, when Australian ISPs are handed a letter purporting to identify a user by ip address who is alleged to have downloaded infringing material, whether they will identify the subscriber or pass on the threat? This process poses significant privacy risks to Australian individuals, and substantially alters the copyright balance. By facilitating this method, the law effectively eliminates any presumption of innocence or requirement for copyright owners to prove their case. I wrote a paper several years ago on the risks to individuals if intermediaries are co-opted into acting on the behalf of copyright owners without proper judicial oversight – simply put, intermediaries have little incentive to look out for the legitimate interests of individual subscribers, and individual subscribers have little standing to object on their own behalf. That paper considered formal pre-trial discovery and anton pillar orders – with recent evidence suggesting that even judicial oversight is somewhat limited in these cases: see Privacy v IP Litigation: preliminary third party discovery on the Internet.

Peter answered that this is an issue which will require a test case to determine. The argument made by copyright owners is that Section 36 of the Copyright Act 1968 (Cth), which provides for secondary liability for authorisation of copyright infringement (for Part III works), is not covered by the safe harbours introduced in 2004. Accordingly, if ISPs are provided with actual knowledge of alleged infringements, and do not act on their Acceptable Use Policies to terminate the users' subscriptions, they will be liable for authorisation of copyright infringement.

The ISPs, on the other hand, argue that their behaviour is caught by the first limb of the safe harbour, Category A activty. This seems to be a straightforward reading of the legislation. The ISPs also note that the obligation to terminate repeat infringers under s 116AH(1) requires proof of infringement, not mere allegations of infringement. The ISPs, therefore, should fit squarely within the safe harbour, even if the copyright interests forward multiple letters alleging infringement.

Peter concluded that the position is too uncertain in Australian copyright law, and will probably require a test case to determine. I asked whether, until the law is clarified, Australian ISPs would refuse to volunteer identifying details of their subscribers purportedly identified by IP address, short of an Anton Pillar Order or subpoena (with the concommitant judicial oversight). Peter reassured me that he believes that Australian ISPs would oppose such attempts by copyright owners… I certainly hope that he's correct.

In Australia, blind people are able to access texts in braille and books on
tape, but the demand for these media is decreasing. Blind people today are
increasingly reliant on texts in electronic form, and these are much less
readily available in Australia. Electronic texts are more portable and less
cumbersome than large braille volumes, and are much faster to navigate
than audio recordings. However, in Australia it is difficult for blind people to
get access to a wide range of electronic texts and there exists no scheme
enabling such access. At the same time sighted people are using electronic
text and other digital media at an ever-increasing rate. In order to
approximate the same level of access as sighted people, blind people
require access to accessible electronic versions of all published material.
The authors suggest that given the legal imperatives of Australia’s domestic
legislation, treaty obligations and social values, that there exists a moral
imperative to create a scheme providing blind people with access to digital
print media.

Thanks to the MALR and LexisNexis, it's available here under a CC BY-NC-SA 2.5 (AU) licence. Attribution must be to the authors and the publisher (first published by LexisNexis and MALR).

Published as Nicolas Suzor, Paul Harpur and Dilan Thampapillai, 'Digital copyright and disability discrimination: From braille books to bookshare' (2008) 13(1) MALR 1.

We lodged a submission with AGD about the format shifting exceptions for photographs and films.

Press release is available at the EFA site.

In short, we argued for a digital-to-digital private copying exception.

If the purpose of copyright is to provide incentives for creators, then preventing consumers from watching their purchased films and photos on the device of their choice adds little to no incentives but imposes a large cost to consumers. Expecting consumers to purchase a separate copy of each film or photo for each device (electronic photo frame, set-top-box, computer, portable player, etc) will have three effects: some consumers will get ripped off by having to buy the same thing more than once, some consumers will be impoverished because they can't enjoy their media on their device of choice, and some consumers will simply disregard copyright law in the knowledge that it is currently very difficult to police private copying. In one of these cases, the copyright owner earns more fees for no additional investment.

I would like to see a serious argument that copyright owners need the additional licence fees that they are likely to earn from families purchasing more than one copy of any given film or photograph.

Failing any significant evidence that I haven't heard of on that point, I firmly believe that the balance favours allowing private copying.

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.

(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.