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Asher Moses is reporting today that RailCorp have threatened to sue the developer of Transit Sydney for infringing copyright in their public transport timetables. Transit Sydney is an iPhone app, sold through the store for $2.49 ('just to cover costs'). It provides a display like the one on the TV monitors in train stations that shows the next trains coming past the platform. It pulls timetable data from CityRail for display to people on the move. It's not clear whether the information is pulled dynamically or statically compiled.

RailCorp, for some reason, have threatened to sue the developer, claiming that it infringes on their copyright in their timetables. RailCorp claims that

RailCorp's primary concern is that our customers receive accurate, up-to-date timetable information.

[…]

This includes details of service interruptions, special event services, trackwork and other changes. Third-party RailCorp timetable applications may contain inaccuracies and have the potential to mislead our customers.

I've blogged before about the dangers of inaccurate public transit and geospatial data. Using copyright law to outright prevent the spread of such data, however, does not seem to be the best way to serve the public. Surely it would be more useful for RailCorp to make their (accurate) information more accessible, by providing open interfaces for developers, than to threaten innovative developers with copyright infringement suits. These developers are clearly responding to market demand in a way that the operators of the public transit networks simply have not been willing or able to. I assume that most users of these products would prefer to take the risk of some inaccuracies than to be without – indeed, those risk averse users could simply save themselves $2.50 and rely on the minimal official publications.

This is, unfortunately, an example of copyright law once again failing to achieve a balance between rewarding creators and promoting access to information. In Australia, following DMS v Telstra, the standard of originality for the subsistence of copyright is very low. In that case, a telephone directory was held to be an original literary compilation. This is exactly one of the points currently before the High Court in the Nine v IceTV appeal, where Nine are defending a finding that IceTV infringed on its copyright television schedules by providing an electronic programme guide. Lacking an Australian fair use defence, innovators are in a very difficult situation here.

This is the same argument, once again. Copyright ought to exist to stimulate innovation – it is a temporary monopoly granted to provide the incentives to create expression (at least in the sense of the economic rights). By making expression somewhat excludable, we allow for the private production of an otherwise public good.

But how does this relate to the creation of schedules? Presumably, RailCorp is already rewarded by determining what time their trains will run. They publish this information so that customers will buy train tickets. The goal is not the creation of schedules in and of themselves, but the operation of a rail network. Protecting this bare information serves no public policy goals. Allowing innovators to take this information and present it in a new way in order to respond to market domain does not hurt the operator of the network – if anything, it makes the network more useful and hence increases its value.

Copyright ought to attach to original expression. Unfortunately, Australia's low threshold for originality means that copyright increasingly protects mere facts. There's only a few ways that I can tell you that the Bondi train will be approaching in four minutes. To prevent me from repeating that information doesn't protect the integrity of the train network, it doesn't help consumers, and it certainly doesn't help innovation.

This is another example of the chilling effect of poorly thought out and implemented copyright law. Lets just hope that the High Court can fix the threshold of originality later this year in the IceTV case.

The original Associated Press photograph of Barack Obama and Shepard Fairey’s “Hope” poster (compilation from NYT blog story).

(I originally wrote some of this content for EFA's submission (PDF) to the Department of Broadband, Communication and Digital Economy’s Future Directions review.)

In a major review of Australia's copyright law in 2005, the Attorney-General's Department determined not to introduce an open ended copyright exception like the US fair use defence. This decision resulted in Australia adopting some of the harsher measures from US copyright law without the corresponding flexibility that provides a balance for users and rights holders. This balance directly affects free speech and innovation – it is the balance between providing the incentive to create and reducing the barriers to create new works. If this balance is not achieved in either direction, both innovation and speech are likely to be greatly restricted in Australia.

As you may be aware, Shepard Fairey, the artist responsible for the powerful 'Hope' poster, has sued for a declaratory judgment that it does not infringe copyright in the original AP photograph that he used for inspiration. The Stanford Fair Use project is supporting the suit, and claim that:

There should be no doubt about the legality of Fairey's work, […] He used the photograph for a purpose entirely different than the original, and transformed it dramatically. The original photograph is a literal depiction of Obama, whereas Fairey's poster creates powerful new meaning and conveys a radically different message that has no analogue in the original photograph. Nor has Fairey done any harm to the value of the original photograph. Quite the opposite; Fairey has made the photograph immeasurably more valuable.

A major flaw in Australia's copyright regime, as compared to the United States, is that we lack an exception to infringement for transformative reuse of copyright material. In the US, transformative use is a factor in the four-factor fair use defence, and allows some latitude for innovative repurposing of existing expression. In Australia, our fair dealing exceptions limit unlicensed reuses of copyright material to a small number of allowed purposes. Innovative acts of reuse that are not able to be pushed into one of these categories generally require a negotiated licence, which is often not forthcoming or prohibitively expensive. Because the fair dealing provisions are so narrowly interpreted, a large proportion of new creative expression is inhibited by our copyright law.

So it would appear that Australian copyright law would essentially prohibit the unlicensed creation of this type of poster. It is hard to see the justification for this result. We see time and time again that copyright owners often refuse to license their material on reasonable terms. It is probable that this sort of poster has no adverse effect on the market for the original – it is certainly not directly substitutable. It does however, have a very positive effect on public discourse – this icon has proved to be one of the most powerful of the recent campaign.

We introduced a parody and satire exception to copyright infringement to create a space for some transformative works, but this is a clear example of important speech that simply can't fit within one of our purposive exceptions. It shows that there is something fundamentally skewed within our copyright policy if this type of speech – speech that engages individuals in a public political discourse – is not permissible.

I argued in my masters paper that we ought to introduce a transformative use exception into Australian copyright law. If we tried hard enough, I'm convinced we could come to agreement on a balanced exception that would prohibit mere repackaging but allow unlicensed repurposing of copyright material that is not directly substitutable for the original. As we argued again in the EFA submission to the DBCDE consultation paper, such an exception could introduce much needed flexibility in Australian copyright law and provide some additional scope for innovation without compromising the incentives to create original expression.