Time for fair use to free up technology
Last Updated: 12 May 2005
It's a matter of hot debate as to whether or not we got a good deal out of the FTA as a whole, but it was conceded that there was nothing good in there for Australian consumers as far as copyright goes.
This opinion was written by Matt Black and originally appeared in The Age technology opinion section on 28 January 2005.
Time for fair use to free up technology
I was excited to read the overview of TiVo given by Darren Challis, director of commercial strategy of John Fairfax Holdings. He explained how he uses his TiVo to record a copy of the 7pm ABC news each night and how he caught up on the final three-hour Survivor All Stars despite missing the first 45 minutes. This is the kind of technology that I want to use.
Darren informed us that there's a small, non-commercial, Australian enthusiast community building its own TiVos. However, he suggested we wait awhile because Foxtel has hinted it will offer consumer-ready, TiVo-like technology within a year.
I suggest you wait longer than that. A lot longer. I suggest you wait until we get fair use rights that would allow you to do the things Darren describes. At the moment using TiVo is probably theft. Well, OK it's copyright infringement actually, but the industry types insist that it's theft.
It's easy to forget that taping shows off the TV is unlawful. It's easy to not realise that converting your music CDs to MP3 format to listen to on your iPod is breaking the law.
You see, you're only allowed to copy something in which copyright subsists - which is just about everything these days - if you have the permission of the copyright owner. And no, the owners have not given us permission to record from the telly or convert music to MP3s for mobile listening.
A lot of people I speak to don't realise that these things are unlawful. Even last year's Senate Committee on the US free trade agreement had trouble with the idea. That's easy to understand, because in the US consumers are allowed to do those things through their "fair use" rights. But in Australia we don't have any such rights. Seriously.
We have certain narrow rights in respect of using copyright material for things like research or reporting the news, but certainly not for taping Survivor All Stars for later viewing.
And it's not that we don't need those kind of rights. The Commonwealth Government's Copyright Law Review Committee recommended that Australia should have US style fair use rights. And the two Committees that considered the FTA - one Government-dominated and one Labor-dominated - supported the idea of fair use rights for Australians.
In fact, you could be forgiven for thinking that maybe we were given fair use rights as part of the FTA. You know, all that talk of harmonisation. But we weren't. I suppose they would say that fair use isn't relevant to free trade - it's an issue for another day.
Well, the day for fair use is well and truly here. It's a matter of hot debate as to whether or not we got a good deal out of the FTA as a whole, but it was conceded that there was nothing good in there for Australian consumers as far as copyright goes.
The FTA has extended the rights of copyright holders. It has also extended the criminal law to apply to more instances of copyright infringement. The copyright industry is getting all its demands and more. But what about consumers?
Technologies like TiVo have almost no legal use in Australia. MP3 players are in a similar boat. Maybe you can purchase "legal" digital music online now, but what about all the CDs you already own? Should you have to buy those songs again to get them in a different format?
In order to put many new technologies to their best uses, consumers need a flexible right to use legitimately purchased content. Fair use certainly won't solve all the copyright difficulties we experience, but implementation of the FTA serves to highlight the compelling need for fair use rights.
It's too bad fair use rights weren't included with Labor's amendments to the FTA legislation. We don't need more inquiries or reports into fair use rights. We need realistic laws and some basic consumer protections in respect of copyright. We need these rights implemented now.
Update: A number of readers have drawn my attention to section 111 of the Copyright Act 1968 (Cth). At first glance, the provision appears to give consumers a home taping right for TV shows because it provides that recording a television broadcast does not infringe copyright in that broadcast.
The problem is that this exemption only applies to the broadcaster's copyright, which is distinct from copyright in other aspects of the TV show. As the Australian Copyright Council explains, aside from the broadcaster's copyright "there are nearly always other copyrights to consider - including the copyright in the moving images and sounds, the copyright in any script or screenplay, and the copyright in any music."
You cannot copy from TV without permission from the copyright holders - despite the fact that everyone apparently does it, even senior Fairfax executives. So let's end this farce. Most people are taping things at home and most people think they're allowed to. Let's make the law bend to reality instead of the other way around.