===============================
COMMENTS TO THE COPYRIGHT CONVERGENCE SEMINAR HELD IN SYDNEY ON 23
JUNE,1994 BY TIM CONWAY, ON BEHALF OF ELECTRONIC FRONTIERS AUSTRALIA,
INCORPORATED
===============================

My name is Tim Conway and one of the hats that I am wearing today is as
a representative of Electronic Frontiers Australia, Incorporated.

Electronic Frontiers Australia is an association of people with a common
interest in the digital community, computer-based communications systems
and on-line information system services.

Its objectives are:

o  To maintain the same basic freedoms within computer-based
communications systems as without;

o  To educate the community at large about networks and their use;

o  To support, encourage and advise on the development and use of
networks and related innovations;  and

o  To research and advise on the law that might apply to these networks.

These objectives are met by making submissions to Government and
Parliamentary inquiries, such as the Attorney-General's Task Force On
Regulation Of Bulletin Board Systems And On-Line Information Services,
the Senate Select Committee On Community Values, and the Broadband
Services Expert Group.

Another key role is to expand community awareness of the potential of
information networks and their capabilities.

Some current activities that efa is involved with include:

o  Research in current Australian law regarding bulletin board services
and other on-line services, distributed mail networks and computer-based
communications systems in general;

o  Providing a set of legal guidelines for providers of these services
detailin their rights and responsibilities;  and

o  Producing newsletters of various types for the digital community at
large an other public education programs.

EFA was pleased to receive an invitation to attend today's seminar and I
am here at the request of the Board of EFA and its Chairman, Dr Michael
Baker.

EFA has four major concerns with respect to the CCG Issues Paper.  These
are:

o  first, the absence of any significant consumer or network user
perspective, nor any attempt to promote debate within the user
community;

o  secondly, the way that, convergence notwithstanding, the Issues Paper
retain the concept of distinct forms of copyright, and suggests that
appropriate amendment in each case is the solution to convergence.  I
call this `law making by backfilling';  it means we are always playing
`catch up' to technological change;  consequently, our law will neither
be timely nor certain;

o  thirdly, the whole Issues Paper is based on a `transmission' or
`broadcast' model of the future, using pay TV as the business driver.
It is too early to say whether this will be the major model and, in any
case, there is an equally valid model in place which is driving
computer-based networks - based on the consumer exercising choice, and
the creator making information accessible, which is located, collected
and downloaded by the consumer;  and

o  finally, there is the nature of the information we are talking about.
The Issues Paper acknowledges that in binary or digital format, there is
no physical distinction between Madonna's latest hit, the text that I
wrote yesterday, an image of the Mona Lisa or a digitised video
recording of Monday's "State of Origin" football broadcast.  We overlook
this at our peril.

Addressing each briefly:

Our most fundamental concern with respect to the issues being considered
by the Copyright Convergence Group and, indeed, the structure of the
Group itself - and this is not to be interpreted as a criticism of any
individual on the Group or their competence - is that there seems to be
very little consumer or user perspective.

Perhaps more seriously, there seems to be little technological
perspective - especially a perspective based on the technological
convergence that is here and now -  the convergence of computing and
telecommunications.

This convergence is creating exponential growth in the amount of
information that is being accessed and communicated over computer-based
electronic networks.

As an illustration of this, EFA is concerned that no e-mail address is
given for CCG members, nor was the Issues Paper published
electronically.  Those of us who use the networks know that this form of
publication generates robust, effective debate and obviates the
"single-time-and-place" constraints of a seminar such as today's.

EFA urges you to take this step.

In the markets for services that we are discussing today, ultimately it
will be users and consumers who will determine what they like and what
they don't like - especially the delivery mechanism or means of access.

In this context, Copyright law has always involved a balancing of the
interests of consumers and copyright owners.  The interests of
consumers in having access to copyright materials, and the interests of
copyright owners in securing a reward for, and maintaining control over,
the distribution of those materials.

If you want to find out what today's consumers of electronic network
services think - and a good many of the copyright owners and creators of
works, too - open up your discussion on the electronic networks, not
just in a roomful of lawyers.

The continuing need to balance the interests of consumers and creators
must remain at the forefront of all discussions.  Yet the Group's issues
paper makes no reference to this principle.  I hope this is simply
because it was taken as given!

My second point is to express concern that the Issues Paper fails to
take up the challenge, and move debate towards creating copyright law
that is technologically neutral.

The discussion today remains focused on the different types of works and
the differing rights and licences that apply because of the way,
traditionally, they have been created by their authors or creators, and
accessed by consumers.

I have to tell you,  out there in cyberspace - the world of electronic
networks - these distinctions are no longer.

I know that the Group's Terms of Reference may seem to constrain
discussion in this area, but I urge you to respond to the challenge.
Otherwise, as I said earlier, we will have "backfill" law - law that is
neither certain nor timely.

In this respect also, we should not be so blind as to follow what other
countries are doing and what they, guided by powerful commercial
interests that may well be different to the balance of interests in
Australia, support in the international fora such as WIPO.

The third point is with respect to the industry or service model that
the Copyright Convergence Group seems to have adopted in its analysis of
the issues.

Overall we believe that those issues that have been addressed by the
Group have been considered well.  However, there are whole areas that
have not been examined at all because the assumed model for future
information systems is transmission or broadcast-based.   It is the
"thousand channel cable system".

This model conceives a system or systems where the provider has high
bandwidth to the user and the user has low bandwidth to the provider.
It assumes transactions based on the provider providing or transmitting
and that the user more-or-less passively accepts and takes delivery.

It is a model based on many consumers and relatively few, dispersed
producers.

It is not clear to efa whether this is in fact the type of system that
will ultimately evolve.  Apart from existing free-to-air radio and TV
broadcasting, this does not exist now.  This model is not one that EFA
supports as being appropriate for other than very limited,
broadcast-type entertainment systems.

It is certainly not how many of the existing digital networks operate
today. In fact, all of the multimedia and information and education
services that operate over existing services are based on two-way,
increasingly high bandwidth connections.

One of the features of this model is that it actively encourages the
user to be a participant, to become a producer.

Typically, users or consumers reach out over the network to access
services that they require and make accessible the work they have
created.  They choose the information that they want and they collect
the information and download it over the network to their systems for
use.  This raises many different questions with regard to copyright.

Despite this,  the discussions today and in the Issues Paper are based
on concepts of "transmission" and "broadcast", whereas the existing,
rapidly growing networks are based on information and material that is
made accessible, that is collected, that is down loaded - it is not
"transmitted" by either the content owner or the service provider.  It
is not necessarily accessible to the "public" but only to defined
interest groups .

Finally, in very many cases the information gathered or collected is in
binary form and has little - if any - value, form or substance until it
is converted or read or transposed or processed by a software
application on the consumer`s computer.

Just think of Madonna, the Mona Lisa and State of Origin - and these
notes!

This, of course, raises other questions regarding the nature and use of
the material that is accessed over these networks.

These are all issues that efa believes ought to be given closer
consideration by the Copyright Convergence Group.

Thank you.



For further information on these comments, contact Tim Conway on
06-295-7846 (AUST0361@AppleLink.Apple.COM)

For further information on EFA contact

Electronic Frontiers Australia Inc.
PO Box 382
North Adelaide  SA  5006

Phone: (08) 384 7316            International: +618 384 7316

Internet: send email to efa-info@efa.iinet.com.au