Comments to the Copyright Convergence Group on behalf of Electronic Frontiers Australia Introduction These comments were drawn up by Dr Michael Baker in conjunction with Steven Clark and are being submitted to the Copyright Convergence Group on behalf of Electronic Frontiers Australia. Had we had more time between the call for comments and the deadline we should have been more fully been able to gather our thoughts, read the legislation, and make more informed comments. About EFA Electronic Frontiers Australia is an association of people with a common interest in computer based communication systems, online information services, electronic mail networks, and similar media. EFA was "born" on Fidonet and the Internet last year. It arose out of a growing awareness by its founding members of the need for a community based organisation to become involved in the establishment of the national agenda for the delivery of data communication services to and within the Australian community-at-large. It is loosely modelled on the American Electronic Frontier Foundation (EFF) and has received a great deal of encouragement and support from that organisation in its establishment phase. Electronic Frontiers Australia is a net-based organisation. EFA conducts the vast majority of its business via electronic data communications medium, utilising both Internet and Fidonet systems. EFA's objectives, loosely stated, are: o To ensure that people have the same basic freedoms 'within' computer based communication systems as without, o To educate the public at large about computer based communication systems and their use, o To support, encourage and advise on the development and use of computer based communication systems (and related innovations), and o To research and advise on the law as applied to computer based communication systems and related technologies. To these ends, EFA is corresponding with the media, representatives of the government, the law community, and other interested groups. EFA has created and/or uses mailing lists, Usenet newsgroups and Fidonet-based echomail conferences to foster discussion of these issues. Background While the Terms of Reference for the Copyright Convergence group cover "electronic transmissions" the detailed items (particularly (i), (ii), (iv) and (v)) appear to be more limited. However the Australian (Tuesday April 19 "Copyright law coming to digital crossroads: Kerr" p 32) reports that ' the federal Minister for Justice, Mr Kerr, told a National Convergence Symposium in Sydney ... "electronic transmissions" did not just encompass the more traditional notions of broadcasting and cable transmission, but other activities such as the dissemination of copyright materials through computer networks, from computer databases and dial-up services.' There is already much transmission of material via computer networks. Initially this was restricted to text, but increasingly other media are being transmitted too. A non exhaustive list includes pictures (in GIF and other formats), moving pictures (in MPEG and other formats) and sound. There is already a "radio station" broadcasting on the Internet. With the advent of drag and drop technology in graphical user interfaces (such as Microsoft Windows) it will become increasingly easy to include both sound and video clips in email messages. One form in which such transmission takes place is through Usenet newsgroups. Such newsgroups contain articles from many authors. The transmission of newsgroups is often undertaken by commercial concerns who charge a fee for the service they provide. There appears to be widespread agreement that the author of each article retains the copyright to that article while implicitly allowing it to be copied (in its original form) through Usenet. The above mentioned report on Mr Kerr's presentation to the National Convergence Symposium concludes with Mr Kerr's closing words to the Symposium. He quoted the former French Minister of Culture, Mr Jack Lang who advocated increased rather than reduced diversity in the world we are about to enter. In these comments it is assumed that the Terms of Reference of the Copyright Convergence group cover the transmission of all copyrighted material over electronic networks, not just that explicitly mentioned. Comments The focus of the group on industry would appear to be mistaken. In general authors, artists, and composers tend to be innovative, whereas industry often is not. If the focus of the review is solely on industry then there is a grave danger that what emerges will stifle innovation, rather than enhance innovation and diversity. The article in the Australian mentioned that the group is going to hold a seminar in Sydney in mid June to offer participation by interested parties. It would be highly desirable if such participation could be opened to a wider audience. There is need for widespread public debate, one in which the public is informed of the issues, in particular what is wrong with current copyright law? One such way of achieving this would be to hold discussions on the work of the group on electronic networks. To this end it would be highly desirable for the group to obtain an e-mail address. It seems ironic that a group examining electronic transmissions via computer networks is not using those very networks to gather comments. As far as I understand Copyright Law, if electronic representations, including e-mail, are considered as works, or as particular expressions of an idea/ideas, then the spirit of the current Copyright Law should be considered as valid for these as well as the paper, or physical forms. Principles We would like to see the following principles being adopted by the group when it draws up its recommendations: o Copyright law should encourage innovation. The use of copyright law to stifle innovation should be discouraged. o Balance is required between the interests of publishers and of authors. o Not only should copyright law be technology neutral it should also be size neutral. For example it should not favour big business at the expense of small businesses. Question One of the questions that the group might want to consider is "what constitutes proof of authorship of an electronic transmission?" This is important for both those who wish to claim copyright to that they post electronically and those who claim that someone has violated their copyright by making an electronic post. In both cases the question is did the person who apparently made the post actually make it, and was it made at the time claimed? One of the reasons why this question should be dealt with is that it is relatively easy to fake an email message on some electronic networks (particularly the Internet) to make them look as if they came from someone else. So the question is always there, is the apparent poster the actual poster of the message? Recommendations The transmission of Usenet newsgroups should not be the subject of separate copyright from that of the individual posters to the newsgroups. The current system works - if it's not broke don't fix it. Michael Baker Chairman Electronic Frontiers Australia PO Box 5 Flaxley 5153 (08) 388 8439 22 April 1994