Copyright – Electronic Frontiers Australia Promoting and protecting digital rights in Australia since 1994. Fri, 13 Apr 2018 04:00:40 +0000 en-AU hourly 1 Australian tech start-ups stand to lose out in proposed copyright reforms Tue, 12 Dec 2017 10:29:42 +0000 Continue reading ]]> The Australian government quietly introduced the Copyright Amendment (Service Providers) Bill 2017 to the Senate on Wednesday. If enacted, the bill will extend the scope of Australia’s copyright safe harbours - very slightly.

Safe harbours protect internet hosts and platform providers from monetary liability for copyright-infringing content posted or shared by their users. For example, if you post the latest Thor movie to YouTube, YouTube won’t be responsible for copyright infringement if it takes down that video. In Australia, we only extend this protection to internet services providers, not general purpose websites.

This matters because technology firms rely on limits to liability to manage their risks. Companies like Facebook or YouTube, which host millions of pieces of user content, would face serious difficulty starting in Australia because our laws on copyright infringement are so strict.

This article is by Kylie Pappalardo, from Queensland University of Technology and was originally published on The Conversation. It is republished here under a Creative Commons Attribution-Non-Derivative Licence (CC-BY-ND). See the original article.

The new legislation is a step in the right direction, but it doesn’t go far enough to create an environment that fosters Australian innovation.

Excluding platforms from safe harbours doesn’t make much difference to tech giants like YouTube and Facebook, since they already operate within the United States safe harbours. But it does discourage Australian tech start-ups from the chance to experiment in a reduced-risk environment.

It is not just the US with broader copyright safe harbours than Australia - jurisdictions around the world extend safe harbours to internet intermediaries beyond ISPs.

The European Union, for example, provides that member states must ensure that any hosting provider will not be liable for unlawful content posted by users, provided it acts quickly to remove the content upon notice.

Low hanging fruit

It’s the second time this year that the government has amended Australia’s copyright laws. The first was the Copyright Amendment (Disability Access and Other Measures) Act 2017, passed in June, which provides greater access to copyrighted content for people with disabilities such as vision impairment.

Both measures are low hanging fruit for the government. They improve our existing copyright law, but they don’t advance us far from the status quo.

The government is staying well clear of the more contentious, though far more impactful, potential reforms to the Copyright Act recommended by bodies such as the Australian Law Reform Commission and the Productivity Commission.

What are the copyright safe harbours?

The copyright safe harbours came about as a result of the US Digital Millennium Copyright Act (DMCA) in 1998. The DMCA represented an important bargain struck between the established content industry, such as big film and TV studios, and the burgeoning tech industry.

The content industry got a “notice-and-takedown” regime that required online service providers to remove material that infringes copyright. In exchange, the tech industry got copyright safe harbours.

Under this system, the service provider must quickly and efficiently remove infringing content if they are informed about it by the copyright owner. This notice-and-takedown scheme has become fundamentally important to the way the internet works today.

Why are Australian safe harbours so limited?

In the 2005 Australia-US Free Trade Agreement, Australia agreed to adopt these provisions into Australian domestic law.

But in enacting the copyright safe harbours, parliament made a drafting error. Instead of extending protection to “service providers”, as the US law does, we gave protection to “carriage service providers” as defined in the Telecommunications Act.

Essentially, Australia only gave protection to internet service providers like Telstra, Optus and TPG, and not to platform providers like Whirlpool, RedBubble, YouTube or Facebook. For more than a decade, this has been a critical difference between US and Australian copyright law.

What’s changing?

The new bill appears to close the glaring gap between US and Australian law by replacing the term “carriage service provider” with, simply, “service provider”.

But the bill defines “service provider” to be either a carriage service provider; an organisation assisting persons with a disability; or a body administering a library, archives, cultural institution or educational institution.

It does not extend the safe harbour to those who actually need it the most – Australia’s internet hosts and platform providers.

This is a seriously missed opportunity for Australian innovators. There is a real risk for businesses, both large and small, who want to provide online spaces for people to communicate.

Our copyright laws potentially make hosts liable for much of the copyright infringing content that users may upload or share. But it can be prohibitively expensive and time-consuming to pre-screen all content before it is uploaded.

This is one of the reasons why many large social media platforms don’t base their operations in countries like Australia, and why Australian businesses are at a major competitive disadvantage compared to those in other countries.

Why not extend the safe harbour to Australian innovators?

There were early indications that the Australian government intended to extend the safe harbours to all online service providers, but these amendments were shelved.

Entertainment industry groups have been lobbying hard in recent years for measures that go beyond the notice-and-takedown scheme that the safe harbours provide. They want what they call notice-and-staydown: proactive filtering of unlicensed copyright content by service providers.

At the same time, copyright owners want higher payments. They use the term “value gap” to describe what they see as the difference between sites like Spotify that pay hefty licence fees to make content available to users and sites like YouTube that do not.

Content owners are no longer happy with the bargain they struck in the DMCA – they allege that sites like YouTube are gaming the system of the safe harbours.

There is a false equivalency at work here. Spotify is not a site for user-generated content and does not purport to be; sites like YouTube have everyday users at their core. If we believe that creative discourse, engagement and play matters then there is a cogent reason why sites that facilitate user-generated content might need some legal latitude.

However, this debate misses a more fundamental point. Limited safe harbour provisions hurt Australian creators and innovators. They increase the risk to innovators developing new technology products and platforms.

And, importantly, Australian creators miss the opportunity to exercise greater control over their creations through notice-and-takedown mechanisms that are easy to use and far cheaper than copyright lawsuits.


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Despite a victory on IP, the TPP's resurgence hasn't cured its ills Sun, 12 Nov 2017 01:08:17 +0000 Continue reading ]]>

Image: Chambosan/Shutterstock

Ever since the United States withdrew from the Trans-Pacific Partnership (TPP) back in January, the remaining eleven countries have been quietly attempting to bring a version of the agreement into force. Following some initial confusion,it was announced on Friday that they have reached an "agreement in principle" on "core elements" of a deal.

Even so Canada's trade minister, Canada's trade minister, Francois-Philippe Champagne confirmed that the agreement is far from being finalised, recognising that more work was needed on some key issues. Meanwhile the TPP has been renamed as the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP) and the official Ministerial statement, including the schedule of suspended provisions, was released yesterday.

This article is by Jeremy Malcolm and Jyoti Panday, and was originally published on EFF's Deeplinks blog. It is republished here under a Creative Commons CC-BY licence and has been slightly edited for spelling and context. See the original article.

We now know that almost the entire Intellectual Property (IP) chapter that had been the source of some of the most controversial elements of the original agreement has been suspended. Back in August, EFF wrote to the TPP ministers explaining why it would make no sense to include copyright term extension in the agreement, because literally none of the remaining parties to the TPP would benefit from doing so. The apparent decision of the eleven TPP countries to exclude not only the copyright provisions, but nearly the entire IP chapter from the agreement, more than vindicates this. As we have explained at length elsewhere, IP simply isn't an appropriate topic to be dealt with in trade negotiations, where issues such as the length of copyright and bans on circumventing DRM are traded off with totally unrelated issues like dairy quotas and sources of yarn used in garment manufacturing.

It is important to note that the agreement's IP chapter has only been "suspended". Ever since the U.S. pulled out of the TPP, the other countries involved have been trying to salvage the deal by suspending contentious elements. Suspending issues is a common tactic in trade negotiations as it allows countries to declare victory, despite major areas of disagreement. Moroeover, suspending provisions does not stop countries from discussing them. As Michael Geist has pointed out the IP chapter may still be subject to negotiation as part of working groups.

At present there is also little clarity on how the suspension of provisions would be treated if the U.S joins back to the agreement. The eleven countries could ratify an agreement that automatically reinstates these provisions when the U.S. comes back. If the countries end up being bound by provisions that they have not agreed to because of the U.S. joining back, the suspension of the IP chapter would not count for much.

Nevertheless, the exclusion of so much of the IP chapter at this stage of the negotiations is a strong rejection of US-oriented provisions and a good sign for copyright standards being discussed at other trade venues. Canada, which has the second biggest economy among remaining TPP countries after Japan is simultaneously negotiating the North American Free Trade Agreement (NAFTA) and will need to ensure consistency across NAFTA and TPP. Other TPP nations such as Vietnam and Japan are involved in the Regional Comprehensive Economic Partnership (RCEP) negotiations.

Although the IP chapter was the worst of the TPP, it was not the only concerning part of the agreement for users. There are provisions elsewhere in the agreement that pose a threat to user rights and that we remain concerned about. For example, the telecommunications chapter establishes a hierarchy of interests where unfettered trade in telecommunications services and measures to protect the security and confidentiality of messages are prioritised over privacy of personal data of users. The investment chapter includes an investor-state dispute settlement (ISDS) process which enables multinational companies to challenge any new law or government action at the federal, state, or local level, in a country that is a signatory to the agreement. The inclusion of such provisions not only don't make sense in trade agreements but is also an affront to democracy and a threat to any law designed to protect the public interest. The electronic commerce chapter, with its weak support for privacy, its toothless provisions on net neutrality, and the poor trade-off made between access to source code of imported products, and the security of end users also remains part of the agreement and is unlikely to change much.

Any renegotiation of the agreement can only be successful if member states improve upon and fix the broken process of trade negotiations that led us to the point. The TPP negotiations have been carried out in secret, without public participation or even visibility into the draft document, although corporate lobbyists had direct access to the texts and the ability to influence the agreement. Even when member states have initiated consultations on the TPP at the national level, brief consultation periods between submissions and ministerial meetings has left stakeholders frustrated and with the sense that it is just "consultation theatre". The only way we can trust that the TPP agreement will reflect users' interests is if the reopened negotiations are inclusive, transparent, balanced and create avenues for meaningful consultation and participation from stakeholders.

The decision to exclude some of the most dangerous threats to the public's rights to free expression, access to knowledge, and privacy online is a big win for users, if indeed the TPP countries follow through with that decision as now seems likely. However, the TPP was, and remains, a bad model for Internet regulation.

EFA has also been active in opposing elements of the TPP for some years. In August we wrote to Australian Trade Minister Steve Ciobo in relation to the copyright and ecommerce chapters, and just last week, we reiterated those concerns.

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Streisand Effect helps Sci-Hub to acquire almost all scholarly literature, dooms traditional academic publishing Thu, 03 Aug 2017 07:42:08 +0000 Continue reading ]]> Sci-hub logoTechdirt has been covering the story of Sci-Hub, which provides unrestricted access to a massive (unauthorized) database of academic papers, for a while now. As several posts have emphasized, the decision by the publishing giant Elsevier to pursue the site through the courts is a classic example of the Streisand Effect: it has simply served to spread the word about a hitherto obscure service. There's a new paper exploring this and other aspects of Sci-Hub, currently available as a PeerJ preprint. Here's what one of the authors says in a related Science interview about the impact of lawsuits on Sci-Hub:

In our paper we have a graph plotting the history of Sci-Hub against Google Trends -- each legal challenge resulted in a spike in Google searches [for the site], which suggests the challenges are basically generating free advertising for Sci-Hub. I think the suits are not going to stop Sci-Hub.

This article is by Glyn Moody and was originally published at TechDirt. See the original article.

That free advertising provided by Elsevier and others through their high-profile legal assaults on Alexandra Elbakyan, the academic from Kazakhstan who created and runs Sci-Hub pretty much single-handedly, has been highly effective. The surge in searches for Sci-Hub seems to have led to its holdings becoming incredibly comprehensive, as increased numbers of visitors have requested missing articles, which are then added to the collection:

As of March 2017, we find that Sci-Hub's database contains 68.9% of all 81.6 million scholarly articles, which rises to 85.2% for those published in closed access journals. Furthermore, Sci-Hub contains 77.0% of the 5.2 million articles published by inactive journals. Coverage varies by discipline, with 92.8% coverage of articles in chemistry journals compared to 76.3% for computer science. Coverage also varies by publisher, with the coverage of the largest publisher, Elsevier, at 97.3%.

The preprint article has some interesting statistics on user donations, a measure of people's appreciation of Elbakyan's work and the Sci-Hub service:

We find that these [Bitcoin] addresses have received 1,037 donations, totaling 92.63 bitcoins. Using the U.S. dollar value at the time of transaction confirmation, Sci-Hub has received an equivalent of $60,358 in bitcoins. However, since the price of bitcoins has risen, the 67.42 donated bitcoins that remain unspent are now worth approximately $175,000.

That suggests a fairly healthy financial basis for Sci-Hub, but there is still the risk that its servers and contents could be seized, and the site shut down. As the preprint points out, there are technologies under development that would allow files to be hosted without any central point of failure, which would address this vulnerability. The paper also notes two powerful reasons why old-style academic publishing is probably doomed, and why Sci-Hub has won:

adoption of Sci-Hub and similar sites may accelerate if universities continue canceling increasingly expensive journal subscriptions, leaving researchers with few alternative access options. We can also expect biblioleaks -- bulk releases of closed access corpuses -- to progress despite publisher's best efforts, as articles must only leak once to be perpetually available. In essence, scholarly publishers have already lost the access battle. Publishers will be forced to adapt quickly to open access publishing models.

It's worth noting that this does not mean the end of academic publishing, simply that it makes no sense to put papers behind a paywall, since it is almost inevitable that they will end up on Sci-Hub. However, as the quotation above notes, adopting an open access publishing model, whereby academic institutions pay for their researchers' papers to be made freely available online, can still flourish in this situation. The current analysis finds that people already don't bother to use Sci-Hub so much for open access papers, because they don't need to:

We find strong evidence that Sci-Hub is primarily used to circumvent paywalls. In particular, users requested articles from closed access journals much more frequently than open access journals. Accordingly, many users likely only resort to Sci-Hub when access through a commercial database is cumbersome or costly.

It turns out that the best way to "defeat" Sci-Hub is not through legal threats, which only strengthen it, but by moving to open access, which effectively embraces Elbakyan's vision of all academic literature being made freely available to everyone.

Amid Unprecedented Controversy, W3C Greenlights DRM for the Web Sun, 09 Jul 2017 23:47:58 +0000 Continue reading ]]> w3c logoLast week, the World Wide Web Consortium (W3C) standards body publicly announced its intention to publish Encrypted Media Extensions (EME)—a DRM standard for web video—with no safeguards whatsoever for accessibility, security research or competition, despite an unprecedented internal controversy among its staff and members over this issue.

EME is a standardised way for web video platforms to control users' browsers, so that we can only watch the videos under rules they set. This kind of technology, commonly called Digital Rights Management (DRM), is backed up by laws like the United States DMCA Section 1201 (most other countries also have laws like this).

The W3C has announced that it would publish its DRM standard with no protections and no compromises at all.

Under these laws, people who bypass DRM to do legal things (like investigate code defects that create dangerous security vulnerabilities) can face civil and criminal penalties. Practically speaking, bypassing DRM isn't hard (Google's version of DRM was broken for six years before anyone noticed), but that doesn't matter. Even low-quality DRM gets the copyright owner the extremely profitable right to stop their customers and competitors from using their products except in the ways that the rightsholder specifies.

This post is by Cory Doctorow and was originally published on EFF's Deeplinks blog. It is republished here under a Creative Commons Attribution (CC-BY) licence. It has been edited slightly for spelling and context. See the original article.

EFF objects to DRM: it's a bad idea to make technology that treats the owner of a computer as an adversary to be controlled, and DRM wrecks the fairness of the copyright bargain by preventing you from exercising the rights the law gives you when you lawfully acquire a copyrighted work (like the rights to make fair uses like remix or repair, or to resell or lend your copy).

But EFF understood that the W3C had members who wanted to make DRM, so we suggested a compromise: a covenant, modeled on the existing W3C member-agreement, that would require members to make a binding promise only to use the law to attack people who infringed copyright, and to leave people alone if they bypassed DRM for legal reasons, like making W3C-standardised video more accessible for people with disabilities.

This was a very popular idea. It was endorsed by Unesco, by the Internet Archive, by the creator of the W3C's existing membership agreement, by hundreds of top security researchers, by the competition expert who coined the term "Net Neutrality", and by hundreds of human rights organisations and activists from the global south. The Open Source Initiative amended its definition of "open standard" so that DRM standards could only qualify as a "open" if they protected legitimate activity.

Now, it's fair to say that the W3C's DRM advocates didn't like the idea. After a perfunctory discussion process (during which some progress was made), they walked away from the negotiations, and the W3C decided to allow the standardisation work to continue despite their unwillingness to compromise.

But other W3C members did like the idea. On March 12, the final vote for publishing EME closed, and members ranging from the German National Library to the UK Royal National Institute for Blind People to the cryptocurrency startup Ethereum, to Brave, a new entrant to the browser market -- along with dozens more—rejected the idea of publishing EME without some protections for these equities (the numbers in the vote are confidential by W3C's own membership requirements, but all the members mentioned here have given permission to have their votes revealed.)

It was the most controversial vote in W3C history. As weeks and then months stretched out without a decision, another W3C member, the Center for Democracy and Technology, proposed a very, very narrow version of the covenant, one that would only protect security researchers who revealed accidental or deliberate leaks of data marked as private and sensitive by EME. Netflix's representative dismissed the idea out of hand, and then the W3C's CEO effectively killed the proposal.

Last week, the W3C announced that it would publish its DRM standard with no protections and no compromises at all, stating that W3C Director Tim Berners-Lee had concluded that the objections raised "had already been addressed" or that they were "overruled."

In its statement, the W3C said that publishing a DRM standard without protections for core open web activities was better than not doing so, because its DRM had better support for privacy, accessibility, and competition than a non-W3C version of DRM would have.

We disagree. Even by the W3C's own measures, EME represents no improvement upon a non-standards approach, and in some important ways, the W3C's DRM is worse than an ad-hoc, industry approach.

At root is the way that DRM interacts with the law. Take security: the W3C's specification says that users' computers should be protected from privacy-invading activities by DRM vendors, but without a covenant, it's impossible to check whether this is happening. Recall that Netflix, one of the principal advocates for DRM at W3C, categorically rejected the narrowest of covenants, one that would protect solely the activity of revealing DRM flaws that compromised user privacy.

On the question of accessibility, the W3C has simply ignored the substantial formal and informal objections raised by its members, including members with deep expertise in accessibility, such as Vision Australia, Media Access Australia, Benetech, and the RNIB. These organisations pointed out that having a place for assistive data was nice, but to make video accessible, it was necessary to use computers to generate that data.

It's great to say that if you know where all the strobe effects are in 10,000,000 hours of videos, you could add warnings to the timelines of those videos to help people with photosensitive epilepsy. But unless you have an unimaginable army of people who can watch all that video, the practical way to find all those strobes is to feed the video to a computer, after bypassing the DRM. Otherwise, most video will never, ever be made safe for people with photosensitive epilepsy.

Multiply that by the unimaginable armies of people needed to write subtitles, translate audio, and generate descriptive audio tracks, and you've exceeded the entire human race's video-annotating capacity several times over—but barely scratched the surface of what computers can (and will be able to) do.

On the question of competition, the W3C's response is even more frustrating and non-responsive. EME only solves part of the video-transmission standard: for a browser to support EME, it must also license a "Content Decryption Module" (CDM). Without a CDM, video just doesn't work.

All the big incumbents advocating for DRM have licenses for CDMs, but new entrants to the market will struggle to get these CDMs, and in order to get them, they have to make promises to restrict otherwise legal activities (for example, CDM licensing terms prevent users in some parts of Europe from seeing videos made available in other parts of the EU).

The W3C says that none of this makes DRM any worse than what was there before the standards effort, but they're dead wrong. DRM is covered by a mess of criss-crossing patents that make any kind of interoperable DRM transcendentally hard to create -- unless there's some way of cutting through the patent thicket. That's where the W3C comes in: its patent policy requires members to swear not to enforce their patents against people who implement W3C standards. Since the W3C's membership includes key DRM patent owners, it's the one forum where such a standard can be set.

At EFF, we've spent decades defending people engaged in legitimate activities that companies or governments disliked: researchers who go public with defects in products whose users are blithely unaware of them; new entrants to monopolised markets who offer better products with features the cozy old guard don't like; public spirited archivists and accessibility workers who want to preserve digital culture and make sure everyone gets to use it.

We're dismayed to see the W3C literally overrule the concerns of its public interest members, security experts, accessibility members and innovative startup members, putting the institution's thumb on the scales for the large incumbents that dominate the web, ensuring that dominance lasts forever.

This will break people, companies, and projects, and it will be technologists and their lawyers, including the EFF, who will be the ones who'll have to pick up the pieces. We've seen what happens when people and small startups face the wrath of giant corporations whose ire they've aroused. We've seen those people bankrupted, jailed, and personally destroyed.

That's why we fought so hard at the W3C, and it's why we're fighting so hard to fix laws like Section 1201 of the DMCA. We've been suing the US government over the constitutionality of DMCA 1201; in the coming months, we'll be back at the US Copyright Office, arguing to maintain and extend the exemptions to 1201 we won in 2015.

As for the W3C... we're working on it. There is an appeals process for Tim Berners-Lee's decisions at the W3C, which has never been successfully triggered. The entire project of designing technology to control web users, rather than empowering them, has taken the W3C into uncharted waters, and this is the most unfamiliar of them all. We're looking into this, counting noses, and assessing our options. We'll keep you informed.

EFA also objects to DRM and supports EFF's efforts in this context.

Australia leads in disability access, thanks to copyright changes Fri, 16 Jun 2017 01:23:12 +0000 Continue reading ]]>
Braille display. Image: Sebastien.delorme. CC-BY-SA

Braille display. Image: Sebastien.delorme. CC-BY-SA

Australians with a disability will have some of the strongest rights to access content in the world, thanks to changes to Australia’s copyright laws passed this week.

Copyright peak body the Australian Digital Alliance elatedly welcomed the new laws. Executive Officer, Jessica Coates said: "This is a great step forward for all the Australians who have struggled to get content in the formats they need, whether that be large print, braille or other accessible formats. These amendments ensure that copyright law no longer prevents Australians with a vision impairment or other disability from accessing the books, websites and other essential information others take for granted."

The legislation, which passed the Senate this week, will finally implement Australia’s obligations under the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled.

"Australia took a leadership role in bringing about this treaty, and it is great to see us continuing to lead the world in its implementation" said Ms Coates.

This article is by the Australian Digital Alliance and is republished here under a Creative Commons Attribution (CC-BY) licence. It has been edited slightly for context. See the original article.

Under the Copyright Amendment (Disability Access and Other Measures) Act 2017, whenever content - be it a book, film, online resource or government publication - is not accessible to a person with a disability because it is not available in the format they need, they or someone on acting on their behalf will be able to convert the work into the required format. The amendments remove the redundant bureaucratic hoops that currently consume disability organisations’ time and money, and promise access to the vast libraries of accessible materials that are available overseas.

The legislation also brings significant benefits to Australia’s libraries, archives, schools and universities. It fixes the previously broken and outdated preservation exceptions, ensuring cultural works will be there for future generations. It also frees schools and universities from unnecessary and costly bureaucracy and increases their ability to use the latest technologies to reach students wherever they are.

Perhaps most excitingly, as a result of these changes, on 1 January 2019 millions of unpublished works that have until now remained locked behind outdated and unjustifiable perpetual copyright laws will become free for all to use.

"From celebrity letters and war diaries, to recipe scrapbooks and theses, all of these items will be able to be digitised and shared online by our cultural and educational institutions. This will provide a major new resource for all Australians who appreciate the value of history - be they artists, researchers, teachers or innovators" said Ms Coates.

Many other changes are still needed in Australia’s copyright law to ensure that these new rights can be fully effective, and that our laws remain fit for purpose in a digital age. However, these new laws are a positive start, and will be world-changing for many Australians. The government and all who have worked hard over many years to bring them to pass are to be congratulated.

Copyright Amendment Bill passes: onwards to Fair Use Thu, 15 Jun 2017 03:26:52 +0000 Continue reading ]]> copyright-symbolElectronic Frontiers Australia – the country’s leading digital rights advocacy organisation –welcomes today’s passage of important updates to Australia’s Copyright Act and calls for urgent progress towards more comprehensive reform that will make Australia’s copyright system fit for purpose in the digital age.

The Copyright Amendment (Disability Access and Other Measures) Bill contains a number of important changes that will benefit Australia’s schools, universities, libraries, galleries and museums. These changes will:

  • streamline the process of negotiating statutory licences for the education sector;
  • remove absurd restrictions which have prevented libraries, galleries and museums from protecting their collections for the future; and
  • finally allow millions of unpublished works, such as diaries and personal correspondence to be made available.

The Bill also implements Australia’s obligations under the Marrakesh Treaty for the Blind and Vision Impaired, a global treaty which addresses equity of access to content by removing impediments to the creation of accessible format versions.

EFA is pleased to note that the Bill allows for the creation of accessible format versions of content to address any form of disability and therefore exceeds the obligations set out in the Treaty.

EFA is however disappointed that the simple fix to the copyright safe harbour scheme that would extend it beyond carriage service providers was left out of the Bill, but understands that the government is leading good faith negotiations which are proceeding towards a resolution of this issue in the near term.

Extending the copyright safe harbour scheme will provide legal certainty for all Australian organisations that provide online services, from schools and universities to technology start-ups and service platforms, while delivering low-cost mechanisms for rights-holders to request for infringing content to be removed, and ensuring that Australian consumers will have recourse against frivolous and erroneous takedown requests.

The Copyright Amendment (Disability Access and Other Measures) Bill therefore provides important but only incremental steps towards a copyright system that is fit for purpose in the digital age.

What is now required is the introduction of a broad, flexible fair use exception into Australia's Copyright Act.

As EFA Chair David Cake said today, “while the amendments passed today are both welcome and important, if Australia is to fully realise the social, economic, artistic and educational benefits offered by digital technology, then we must introduce fair use into our copyright system. Fair use strikes an appropriate balance between the legitimate rights of all parties, providing space for creative acts, technological and service innovation, social interaction and political speech, while protecting the interests of copyright-holders.”

Such an exception has now been recommended by no less than six separate inquiries over the last two decades, most recently by the Australian Law Reform Commission in 2014 and the Productivity Commission in December 2016.

EFA therefore calls on the government to introduce legislation to implement a broad flexible fair use exception into Australia’s Copyright Act without further delay.

Fair Copyright for Australia Campaign

GIF image

In partnership with the Australian Digital Alliance, EFA is running the Fair Copyright for Australia campaign.

If you support the introduction of fair use in Australia, please get behind the campaign. You can:


Copyright for Australia that makes sense. That’s fair. Tue, 23 May 2017 03:11:20 +0000 Continue reading ]]> GIF image

Volunteer Wikipedians in Australia are highlighting the need for the introduction of fair use in Australia. You can visit FairCopyrightOz to learn about how Wikipedia does, and Australia could, benefit from it.

Imagine a land in which everything was outlawed,
except for the things that were specifically allowed.
Our laws are based on principles rather than prescriptions.
Except for copyright. – Peter Martin

Have you ever done one or more of these?

  • Shared photos you didn’t take on social media?
  • Re-posted or create memes?
  • Backed-up your DVDs?
  • Forwarded an email?
  • Photographed graffiti or a mural?
  • Quoted from an article or book on your blog?

All these actions copy other people’s copyright material. In Australia, none of these common practices are allowed under copyright law without permission.

With this in mind, volunteer Wikipedians in Australia are highlighting the need for the introduction of fair use in Australia through a banner on the English Wikipedia. In doing so, they add their voices to six government reports since 1998 which have recommended introducing fair use to bring balance to copyright rules. You can visit FairCopyrightOz to learn about how Wikipedia does, and Australia could, benefit from fair use.

In Australia all copying requires permission unless you are only using an insubstantial part of a copyrighted work (which is typically very hard to judge), or the Copyright Act provides a specific exception. The most important exceptions, the fair dealing exceptions, cover research, study, criticism, review, parody, satire, reporting the news, and professional advice as long as the use is “fair”. Any use not for one of these purposes will be illegal, no matter how fair or reasonable it is, unless the government introduces a specific exception for it. This means Australian copyright law cannot keep pace with change, as every new technology or activity requires its own new exception. This takes time and a lot of advocacy. Using a VCR at home to tape television programs was illegal until the legislation was amended in 2006, over 30 years after their invention.

Fair use would fix this. The United States’ fair use law judges each instance on whether it is fair, guided by four fairness factors:

  • purpose and character of the use;
  • nature of the copyright material;
  • amount and substantiality of the part used; and
  • effect upon the potential market for, or value of, the copyright material.

In concentrating on what is fair, it adds flexibility to the law, allowing it to keep up with changes in technology and society. Any Wikipedian who has ever uploaded a fair use file will be familiar with the “fairness” test and the thorough analysis it requires.

Without fair use, Australian copyright law will always lag behind common practice. The lack of flexibility to allow socially beneficial uses—like non-commercial private uses or incidental and technical uses—greatly limits people’s ability to interact with their own culture. The difficulty, or often impossibility, of getting permission means that groups like schools, libraries, archives and technology companies are limited in what they can do, even when their activities aren’t harming copyright owners. It also means Australian schools end up paying millions of dollars each year to use publicly accessible online content on websites that you use at home for free. No one is asking to be paid for using these websites, and the money rarely makes it to the copyright owner. Just as importantly, the use is transformative and socially beneficial. But because the Act doesn’t say such uses are allowed, payment still has to be made.

Wikipedia is one place where Australians regularly notice the benefits of fair use. Around 10% of Wikipedia pages in English have some form of fair use content—that’s over 500,000 articles quoting from a book or an article; showing a company or sports team logo that contains an artistic work; including an audio-sample or album cover; or referencing a book or film title image.

Imagine reading the Wikipedia article on Australian Markus Zusak’s classic The Book Thief, without seeing its front cover, or reading about the classic song Land Down Under by Men At Work without hearing a short clip from it. That’s what Australians would have if Wikipedia’s users could not upload files under the principles of fair use. On the English Wikipedia, copyright rules are based on US fair use guidelines that support the values of the free culture movement. Australian users in Australia should have the benefit of the same principles.

Starting this week, banners will appear to Australians accessing English language Wikipedia articles over the next few weeks. It is rare for Wikipedia editors to place banners across articles. It is even rarer to draw attention to a legislative issue. Wikipedia prides itself on its neutral point of view, after all. However, in a discussion among Australian editors on whether to take action in support of the recent Productivity Commission report, two things became abundantly clear.

  1. Australian Wikipedians strongly felt that it was important to our mission of public education—that the general public should know that we, as volunteers, are already benefitting every day from fair use in Wikipedia articles. Consequently, Wikipedia’s readers do too.
  2. There are misconceptions about what fair use means in practice which we are in a position to dispel. Some Australian Wikipedians commented that they thought Fair Use already is Australian law, which goes to show just how far common practice differs from the law.

Allowing fair use images in Wikipedia is a matter of editorial policy determined by each language community. Wikipedia editors take great care to ensure that all content is free for other people to use in as many circumstances as possible. We want other people to improve and share Wikipedia’s educational resources far and wide. The inclusion of fair use material in Wikipedia reduces the ability for it to be re-used by those who live in countries without this exception. However, Wikipedians for the English-language Wikipedia have determined that the benefits of having these materials available outweigh the concerns that fair use might not be open enough.

The Australian Digital Alliance (ADA) and Electronic Frontiers Australia (EFA) have long championed fair use for Australia and were happy to help support Wikipedians in raising awareness of this issue. Parallel to the Wikipedia banner campaign, on Monday they launched where citizens can learn more, and take action by writing to their member of Parliament—encouraging the government to accept the fair use recommendation made by the recent Productivity Commission Report and other enquiries. As Peter Martin has written in his article about this fair use campaign, this is a first for the Australian Wikipedia community. Wikipedians have also written a new article on the History of fair use proposals in Australia to help increase the level of verifiable and neutral information available to the public on this matter of public policy.

To learn more, visit FairCopyrightOz on Meta-Wiki, or visit the campaign site set up by the ADA/EFA:

This article is by Liam Wyatt, Wikimedia community member and Stephen LaPorte, Senior Legal Counsel, Wikimedia Foundation. It was originally published on Wikimedia's blog. See the original article.


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What is Fair? Karen Chester from the Productivity Commission Thu, 23 Feb 2017 23:54:16 +0000 Continue reading ]]> The Blue Diamond Gallery. CC-BY-SA

The Blue Diamond Gallery. CC-BY-SA

Good morning. Thank you Professor Giblin and congratulations on the launch of yours and Professor Weatherall’s book – What If We Could Reimagine Copyright? An anthology of ten thoughtful essays that collectively make for a forward‑looking treatise on copyright. And my thanks to the Australian Digital Alliance for inviting me to speak today, and to the broader church of the Australian Digital Alliance membership. Many of whom contributed time and effort in making submissions to the Productivity Commission’s inquiry into Australia’s intellectual property arrangements. Thank you.

This post is a speech given by Karen Chester, Deputy Chair of the Productivity Commission, to the Australian Digital Alliance Forum at the National Library of Australia on 24th February 2017. It is licensed under a Creative Commons Attribution 3.0 Australia (CC-BY 3.0 AU) licence.

With my words today I hope to do three things. First, share the lens through which the Commission reviewed and analysed Australia’s intellectual property settings, especially in matters of copyright. Second, do some much needed myth busting — to address claims made about copyright that on any objective examination are more fiction than fact. And third, and most importantly, convey what matters most in getting the policy settings right here.

At the get go of this Inquiry, we envisaged our task would be about how policy could grapple with the cocktail mix of technology, adaptability, creative endeavour, innovation and competition. And it did so to a large part. But at the end of the day — all roads led us to one simple truth; to ask and answer what is fair.

And when we use the term fair we’re not limiting this to fair use. Albeit copyright exception is the policy that matters most for getting the innovation and equity equation right. Because it’s not just about the creators vs the tech giants. And it’s not a zero sum game between rights holders and content users as some would have us believe.

It is about school kids, uni students, less tech savvy older people, less tech savvy younger people, documentary film makers, 55 year old redundant workers, universities and TAFEs trying to teach in a more accessible way, and the cost for anyone down under consuming the creative or innovative endeavour of others. For at the end of the day, out of kilter IP settings have and will continue to create a largely silent and growing class of ‘have-nots’.

So today I hope to connect the dots to the many everyday Australians that stand to benefit from the policy changes we have recommended to Government. For there is a compelling policy narrative to be had here — one of innovation and agility. But perhaps more importantly it is also one of equity that we can relate to everyday Australians. For when we relate the benefits of change to many Australians we know what is fair.

To understand our recommendations, it’s important to start at the beginning and think about IP more broadly. And in doing so our simple truth of what is fair should not be unsurprising. For today IP is embedded in all aspects of modern daily life. It is akin to love in the immortal words of The Troggs’ 1967 classic — Love is all around us. Because IP affects everything and everyone. And it is for this very reason that IP is a policy exemplar — it puts the public into public policy. And perhaps this is why changes to IP are so contentious — because their change affects everyone.

But perhaps it’s also reflective of the plethora of reviews and studies into IP policy over the past two decades or so — work that reflects thousands of hours of professional endeavour, angst and millions of dollars.

This figure depicts the number of reviews into the IP weeds, and often these have been very tightly focused on a particular sort of IP right rather than considering a suite of IP rights. And we know that an array of rights is almost always used by firms and creators to protect expressions of ideas in the modern age.

And it is the siloed nature of these previous IP reviews that has rendered them less effective. Where the concentrated costs of change are readily accounted for fully, while the diffuse and at times unquantifiable future benefits to the community are considered partially at best. And it’s hard, if not impossible, to make good public policy when you’re only thinking about some of the public.

Only three reviews have taken a whole-of-IP approach in the last two decades: the 2000 Ergas Committee on Intellectual Property and Competition Policy Review, the 2008 Cutler Review of Australia’s innovation system and then the Productivity Commission most recently.

The Harper Review of Competition Policy explicitly recognised this when it considered IP matters. It’s why they recommended the Productivity Commission analyse the IP system from a broad perspective. And the Government not only endorsed that recommendation but sent us a very broad terms of reference — the ultimate public policy circuit breaker.

And it’s in the Commission’s DNA to take such an approach. Indeed, our Act requires us to take a community-wide approach: to look at the IP forest rather than particular trees. The only shackle on the inquiry was the requirement to be bound by existing international agreements, but not to the extent that prevented us from making recommendations about how to improve such agreements in the future. And we certainly accepted the invitation to do so.

And with a community-wide view in our DNA, we invest much in community consultation and transparency. It is very much a ‘you tell us’ approach to public policymaking. Where all we ask of inquiry participants is to show us the evidence … and to be honest. And to harvest this evidence, we held 6 public hearings (hearing from just over 120 inquiry participants), we held 69 meetings with creators, consumers and experts, we conducted four round tables involving around 50 participants, we examined and consulted across seven different jurisdictions to get an idea about what was specific to Australia and what was not. And this is before considering the 620 plus public submissions made to the inquiry — every one of them read and studied. Along with our own original analysis. This is how we establish our evidence base.

And because we take an evidence based approach, we even (heaven forbid) change our minds when presented with compelling evidence. This can be seen in our final report where evidence in hearings and the second (post draft report) round of submissions did change our minds (from draft to final report). As can be seen in the areas of business method and software patents, and in plant breeders’ rights, and even in the form of fair use that we recommended in the final report. We conceded, and rightly so, that the smart folk at the Australian Law Reform Commission got the framing of fair use exceptions right and we strayed.

So it does beggar belief that some folk have suggested our report ignores the evidence. For those folk, it is the very breadth of our evidence that helps us to assess what some claim to be evidence but what on closer examination proved to be groundless and (at times) self-serving assertion.

Now balance matters in the high wire act of getting IP policy settings right. Crafting an incentive for creators and innovators to bring ideas to market, while making sure those incentives don’t cruel welfare of the broader community is no mean feat.

And the community had a lot to tell us about the balance of IP — and that the balance was out of kilter for some rights. For some, the balance was fundamentally broken – even if it still represents the finest legal thinking of the 19th century. So the inquiry’s immediate goal was to work out how to fix the balance, but also recognising that mechanisms needed to be put in place to keep the appropriate balance for future generations.


Perhaps what I mean is best shown by our examination of patents. For here we found that too many are granted to low-value innovation. And many are used for less honourable motives. We heard evidence of patents being used strategically to prevent follow-on innovation and stymy competitive forces, to delay the introduction of cheaper generic drugs (at an annual cost of a quarter of a billion dollars).

So we made seven recommendations to fix these problems. And then to make sure it stays fixed, we recommended an ‘objects clause’ — a legislated roadmap for future courts on when and how patents should be granted.

Now no one will argue with the principle that patents are supposed to reward socially valuable innovation and inventions (except perhaps some patent attorneys). For the new ideas and ways to implement them are ultimately what drive wellbeing in society. But in practice, the Commission found a large proportion of patents are granted to ‘low value’ ideas. Think a pharmaceutical of identical formulation to a predecessor, but just with a different dosage. Think a pizza box that folds out into a bib.

This isn’t a new problem, but it’s one that other jurisdictions (like Europe) seem to have had greater resolve to fix relative to Australia. And while there have been local efforts to ‘raise the bar’ — to make getting a patent harder — we had to assess the assertion that we had raised the bar enough down under by examining the outcomes. And in doing so we discovered that assessing patent eligibility had seen very modest change.

We examined the patents (for the same innovations) that had been granted here and in Europe since we raised the bar — and it looked more like raising the limbo bar at a toddlers’ birthday party — no one lost out.

For the Commission getting patents policy right is akin to the John West business model. It’s the fish that John West rejects that makes John West the best. And our original analysis revealed that Australia despite purporting to raise the bar continues to grant a lot of patents to innovations that the EU rejects on the grounds of not being good enough. So there is a long way to go before we are the ‘John West’ of patent policy.


Then there is fairness in enforcement. We heard from participants about the high cost of enforcing IP rights, particularly when a court is involved. And indeed it was a concern of authors with any change to the copyright exception provisions. One participant described the situation:

"… we have a Rolls Royce system called the Federal Court. You go there. The starting price will be $200,000 minimum… Take it from there. $400,000, and then you might have the costs of the other side".

A lot of IP disputes don’t need the Rolls Royce; they can make do with an agile, speedy Vespa. To alleviate these costs, we drew on the experiences of the UK’s Intellectual Property Enterprise Court. My fellow Commissioner Jonathan Coppel and I met with Justice Richard Hacon (the head judge of the UK IPEC) — a terrific meeting where Justice Hacon took us beyond the research and conveyed why the UK model has worked where others had floundered. By capping costs, trial times and damages, dispute resolution costs are reduced and firms have greater certainty. But most importantly the separate list had allowed the discipline of low cost DNA. And it is for this reason we recommended that the Government should introduce a specialist IP list in the Federal Circuit Court, encompassing features similar to those of the IPEC, including limiting trials to two days, caps on costs and damages, and a small claims procedure. For such a low cost, DNA appears to be alive and well in our Federal Circuit Court. And contemporary research from the UK shows the IPEC model is delivering access to justice to a large number of creators that would never have defended or challenged rights in the past.

Now enforcement might sound tedious, but it is at the end of the day an enduring element of what is fair and what is good public policy. So again we return to equity — access to enforcement is access to justice alike for authors on copyright and firms, especially SMEs or new entrants, for patents, design rights and trade marks. It is also a way of future proofing IP policy so it remains fair, balanced and in the interests of the community today as well as tomorrow.

Now at this point, a few of you may be quietly thinking ‘I thought I was attending a fair use conference, but now I’m being lectured on patents and enforcement’. So let’s talk copyright.


Our patent recommendations were largely about addressing what is perhaps best thought of as unfinished business — a material residual imbalance. In contrast, we found our starting point for copyright policy was arguably about trying to find any semblance of balance. Term (at life plus 70 years) and scope (with our current exceptions) are not balanced, and are firewalled from change by international agreements. But we looked and found some areas where meaningful reform can and should be made.

Thanks to geoblocking, Australians pay more for digital content (around 67 per cent more for music) or get less or latter access (like the diminished library of titles available on Netflix in Australia relative to the US). You know something is amiss when the haves and have nots are delineated by who has a teenager in the home capable of circumventing the geoblock. We heard from many participants there is legal uncertainty about the ability for consumers to access legitimate overseas content. And this is the only fair — and indeed workable — weapon to counter online piracy. Creating fair access and eroding the unfair geographic price discrimination that is geoblocking. So we recommended that consumer rights be clarified (and this also applies to ensuring that rights holders can’t contract around copyright exceptions, or rely on technological protection measures to prevent legitimate uses).

Turning to copyright collecting societies. They play an important role for rights holders and they can make a meaningful difference in lowering transaction costs for authors, creators and content consumers. But they can also wield market power. This lifts the governance high bar for what we need to see from a transparency and accountability perspective from these agencies. There have been questions in this inquiry about the effectiveness of the Code of Conduct for Collecting Societies. And we learned in meetings with UK and European experts, and even their collecting societies, that they had lifted the governance code bar in a substantive way and in their view well above the down under code of conduct. So we recommended that the ACCC review arrangements for collecting societies with a view to strengthening governance and transparency, ensuring that the current code represents contemporary best practice (in substance and form), balances the interests of societies and licensees, and whether the code should be made mandatory. For at the end of the day, and as a de minimis, you need to be able to follow the money. And we couldn’t and nor could rights holders or rights users.

Busting the myths: Parallel Import Restrictions

Turning now to the myth busting part of our inquiry — and here it seemed like a monumental sand dune of argument and assertion to be traversed. Three steps up and then two back. And this was especially the case when it came to any mooted change to copyright, and especially parallel import restrictions on books and fair use.

The inquiry was told definitively by publishers that parallel import restrictions do not raise book prices and was provided with some purported evidence to that effect. But on closer examination this just didn’t stack up. So the Commission purchased data on book prices, compared more than a thousand like-for-like titles in Australia, the UK and the US, and found that books were indeed more expensive — by around 20 per cent on average — than in those other jurisdictions like the UK. Myth busted.

The inquiry was then told by publishers and authors that parallel import restrictions are crucial for local markets and to support local authors. But, alas, this stumbled in considering the workings of the market — for PIRs don’t just apply to books by Australian authors. Hilary Mantel’s books get the same protection as Hannah Kent’s, with the benefits largely going to offshore authors and publishers. So PIRs are effectively a tax on readers in Australia, and the publishers the revenue collection agency. And the higher costs of books are borne by all Australians from the bibliophiles, to the students as they (or their parents) are forced to pay more for Harry Potter, Diary of a Wombat and the dreaded text books.

And we know from our previous analysis that from the annual $25 million book tax (from PIRs) around $15 million flows offshore. So it’s hard not to view PIRs as anything but the least effective way to support local authors and perversely at the expense of local readers. We thought about limiting PIRs (and their tax impost) to only the books of local authors – so at least the support is targeted at local authors (although we’re still not quite sure how much of this they see and I’ll come back to this later). But alas the shackles of our international agreements have relegated that option unavailable. So direct government support becomes the policy no brainer if the goal is to cost effectively support local writers and creators, without harming their readers and with the added bonus of cutting out both the middleman and offshore authors. And we explored this angle more in our final report — including establishing that the Government (and ultimately taxpayers) provide around $40 million of direct support to local authors today.

And on the middleman — we did listen to the case made by locally based publishers that the additional money made from PIRs delivering them higher prices is then used to cross subsidise local authors. So we requested this evidence — show us the money and what you do differently to your counterparts in the US and Europe. But we were met with the sound of deafening silence. So again we could not follow the money. Myth busted.

The inquiry was then told that removing PIRs destroyed the New Zealand publishing sector and decimated New Zealand authors. Indeed, based on some of the submissions and commentary made to the Commission, one might expect that literacy had all but vanished in Middle Earth.

But when the inquiry looked closely at these claims, the timeline didn’t stack up — a gap of more than a decade between PIRs being removed in 1998 and the global restructure of the publishing sector which unsurprisingly reached New Zealand given its market size and locale. Moreover, the removal of parallel import restrictions in New Zealand does not appear to have had significant negative effects on domestic creative effort in the books sector. Analysis by Deloitte Access Economics in 2012 (some 14 years after PIRS removal in New Zealand) found that the number of new NZ book titles that published annually has remained fairly steady. Data on the number of authors shows that, following the reform, the share of authors in overall employment has increased in New Zealand. So rumours of the demise of Kiwi authors are just that – rumours and not evidence. Myth busted.

The inquiry was then told that removing PIRs would lead to the dumping of cheap books printed overseas into Australia.

Again we asked for the US based evidence from the publishers that they purported in our public hearings. But again all we heard was the sound of silence. It’s a hard task to check something that hasn’t happened, but the Commission examined the claim by looking at who actually publishes what in different markets. Using more than a thousand like-for-like titles across the Australian and UK markets, we found that about 95 per cent of books were published in both markets by the same publisher or subsidiary. So the threat that you’ll materially erode your own profit margins if you don’t get your way is not the most compelling business case nor corollary public policy argument. So myth busted.

Busting the myths: fair use

The inquiry then turned its attention to fair use, where the same underlying issue of imbalance persists but it is a faster growing divide.

In a nutshell, the existing fair dealing provisions provide prescriptive exceptions to use copyright material, whereas fair use is a more principles-based approach to dealing with copyright exceptions. The biggest difference between the two in operation — prescriptive exceptions are glacial at best to respond to change, where principles-based exceptions can adapt and respond more readily. The glacial adaptive experience with fair dealing is best captured in legislative refresh around recording shows on VHS and time shifting using PVRs. The family VHS VCR was mothballed down under by the time our copyright act recognised its form of copying.

So the question is one of whether prescription or principles is most appropriate in a modern economy of today and tomorrow. And it is here there’s a paramount point of distinction between PIRs and fair use. We know with parallel import restrictions that technology, the digital age and new business models have proved a great equaliser. Digital books, real time publishing (as we are seeing in countries like France) will continue to discipline the price premium local publishers will extract with PIRs. So perhaps where we find ourselves today, with PIRs costing Australian readers around $25 million each year, is about as bad as it will get.

And while technology and the digital age reduce or constrain the costs of PIRs, the same cannot be said for our system of copyright exceptions. And here’s the policy rub and where the greatest policy imperative looms largest for government. For the inequities and costs of fair dealing are growing and will continue to do so with technological and digital advances.

So it’s critical to put fair use very closely under the magnifying glass.

It also required the heavy glass frames of the myth busters. One claim was that fair use would lead to increased court costs and uncertainty. The question about courts and uncertainty is a complicated one.

The Commission consulted widely on this issue, and the community-wide response was far more negative about the existing regime than one of fair use.

The Commission heard stories about librarians being unable to provide material to the community due to uncertainties around fair dealing. The Commission heard about the gains that could be made by making greater use of grey literature, to which fair dealing did not always extend. The Commission heard how fair dealing was constraining and costing our local documentary film makers. The Commission heard directly from Universities Australia about how institutions were reluctant to use material for Massive Open Online Courses — MOOCs — because fair dealing might not extend to them. The Commission heard about how the status quo meant that millions of dollars of public funds are spent each year to pay license fees for freely available internet materials and even thumbnail images of book covers so that they can be used on school intranet sites. Written evidence from Council of Australian Governments that Australian schools are paying the Copyright Agency over $9 million each and every year for material that is freely available on the internet. And we know there is a further $11 million each year that the Agency collects and cannot redistribute. So it goes into a pool to be distributed to members who were not the creative originator. On listening to the full spectrum of consumers, creators and curators, the story that emerged was one where the status quo was uncertain and inefficient, and in spite of the name, anything but a fair deal.

The real question then is: could fair use be worse? Having already addressed some concerns about court costs and access to justice separately, it is really a question about whether it’s appropriate for rights holders or for content users and ultimately an impartial third-party, like a judge, to determine when an exception to copyright should apply and when is it fair.

Under the model proposed by the Australian Law Reform Commission (ALRC) and endorsed by our inquiry, fair use in Australia would use four fairness factors — purpose, nature, substantiality and the market effect. Now courts are well-versed in applying principles-based laws in many areas such as consumer and employment law. And we also met with folk from the US who showed us practical guidance materials on how teachers, libraries, businesses use such guidance to confidently apply such factors in their day-to-day lives — and these guidance notes which abound in the US, could be readily applicable to Australia.

And in the Commission’s view, there’s ample evidence, both at home and abroad, that with such guidance the community can be trusted to employ fair use fairly. Myth busted … and with a modicum of certainty.

Another simpler myth to bust is the claim that fair use is really free use.

This is simply an oxymoron – it cannot hold as an assertion because of the 4th principle — market effect. The market effect on rights holders is a key component of the fairness factors and what’s allowable. So a use that erodes the market potential for a creator is simply not allowable under this principle. So we asked the publishers and the authors to give us examples of what they are being paid for today under fair dealing that they would not be paid for tomorrow under fair use. And we either heard stony silence or we heard of two US examples — Google books and the case of the transformative rapper.

They argued that Google’s “open slather” digitisation of US library books is tantamount to free use. But the US courts did not agree with this portrayal. They instead found that Google’s Library Project did not provide the books in their entirety as a substitute for original works, and instead only provided very small snippets. And most importantly in assessing the fourth fairness factor — the effect of the use upon the potential market for or value of the copyrighted work — the courts found the snippets did not fall foul. Where the snippet view provides a researcher or student with all the information they need to know and they did not then buy the book in its entirety, the Courts examined the evidence and found that this type of information was most likely to be factual in nature and therefore not even subject to any copyright. Moreover, if you step back for a moment and think about what the Google Library Project represents — it is no more than the 21st century equivalent of browsing in a bookstore. So Google is supporting book markets and thereby authors.

Myth busted.

It was claimed that fair use destroys publishing industries and has done so in Canada, and particularly their educational resource sector. That claim did not stand up to even modest scrutiny: the experience in Canada has been grossly misrepresented and ignores specific market factors there. To begin with, Canada doesn’t even have a system of fair use — they have fair dealing. And our Canadian cousins also jettisoned its educational licensing regime — we have not.

But that didn’t get in the way of some trying to shoe-horn unrelated factors in Canada into a story of potential Armageddon in Australia. And to sell a story of Armageddon you need a big number. The number that’s been oft cited by some local luminaries is that fair use would cost the Australian economy $1.3 billion. The number is based on work by PwC and commissioned by rights holders, and curiously contains the following disclaimer:

This Report was prepared for APRA AMCOS, PPCA, Copyright Agency│Viscopy, Foxtel, News Corp Australia and Screenrights. In preparing this Report we have only considered the requirements of these organisations. Our Report is not appropriate for use by persons other than these organisations, and we do not accept or assume responsibility to anyone other than these organisations in respect of our Report.

As the CEO of an economics consulting firm in a previous life, this is a revealing disclaimer. So we read on. We read the entire PwC report cover to cover. And we found it to be an accurate disclaimer.

But there was a modicum of economics in the report. In particular, the following in relation to the effect of Canada’s introduction of a broader fair dealing provision for educational material:

These impacts, while significant for the industry, represent transfers (i.e. from creators to users) rather than economic costs. (That is, if secondary derivative works are not truly transformative, then fair use would merely represent a transfer of supply and demand between various groups within society and would not represent ‘net new’ economic growth.)

So even if we are to accept at face value our local luminaries oft cited cost of $1.3 billion if Australia were to adopt fair use, this would represent a transfer to Australian readers and consumers of the copyright material. The libraries, the new business entrants, the students, the MOOC makers and the local MOOC recipients. So their big number actually represents a big benefit to many Australians.

So whilst we spent some time carefully unpacking the assertions and claims in the PwC report (and a read of our box on page 197 of our report provides the highlights and a sobering read), late in the day, the inquiry also had access to another resource: a cost-benefit analysis undertaken by Ernst and Young for the Department of Communications. This report specifically analysed the winners and losers from moving from fair dealing to other arrangements, including fair use. It was a refreshing read — a considered albeit conservative analysis of what might happen today if fair use came to Australia. It was a here and now analysis not forward looking. It revealed that there was no immediate Armageddon from fair use, rather there would be immediate net economic benefits. And that’s before taking into account how the shortcomings of the status quo affect matters into the future.

So allow me to share some forward looking thoughts. Because it reveals that moving from fair dealing to fair use is not a zero sum game as many portray.

Think, no access to data for data mining means no incentive to the workforce to develop those skills — skills which other jurisdictions are developing in spades.

Think, hampering access to cloud computing means that Australian firms and families are left to use inefficient, antiquated systems in comparison to other markets and countries that can make use of the latest technology.

Think, schools and universities not paying $9 million each year for material that is freely available.

And as flagged earlier, think, providing universities and educators fair and certain access to material for MOOCs will enable a new way to skill and reskill our workforce. And this is perhaps one of the most compelling equity issues hidden away in the fair use free for all. For it’s not just about the millions of lost export dollars of our universities being constrained and unable to develop and export MOOCs.

It’s about what’s needed to re–equip our workforce to remain relevant. Research reveals that the nature of work is changing such that education needs to be continuous and there is the need to make adult learning routinely available for all. A university student today will have 17 different jobs and what they learn at school or university in no way represents the conclusion of their formal learning if they are to remain productive and more importantly employed. And if you think of the structural changes in today’s labour market, mature age workers facing or avoiding redundancy, today’s workers will need to readily tap into new ways of learning. MOOCs will play a vital role in doing so; and fair use in Australia will play a vital role in making sure they can.

Think Israel — in introducing fair use did so with a mind to what would be of future benefit to creators, innovators and educators. So the world’s cultural and innovation pin up country “gets it”. Indeed it cast its policy narrative in this very way. And if we are to be a truly agile economy, this is a policy change that lends itself to an incredibly positive policy narrative. And the narrative flip side is that fair use is a policy lever to avoid the looming education divide of haves and have not’s. Nor do we need to reflect for too long to see what political and policy outcomes await if we allow that to happen. So you can see why there is no single big number of benefit. Because at the end of the day doing such an analysis is complex and simply doesn’t lend itself to a single number. But what we do know is there is no Armageddon. And there are benefits to be had and they reside where the interests of innovation and equity co-exist.

And we know that these benefits can only grow in the future as technology evolves. But perhaps more importantly, so will the costs of the policy failure if we do not jettison fair dealing to the moth ball smelling attic alongside the VCRs.

So I hope today’s tales of myth busting reveal less a case of the Commission’s ideology (as some have suggested) and more an open mind that we try to bring to bear when considering public policy change. We asked, we listened, we evaluated — using work in the public domain, international experience, work commissioned by the Australian Government, work commissioned by others and our own analysis — in order to determine which arguments are wolves in sheep’s clothing and which we can rely on to frame policy that makes a positive difference for all Australians. And our resulting recommendations to remove parallel import restrictions and introduce an exceptions regime of fair use are based on evidence and with only the interests of all Australians, not just a few in mind.

So this inquiry’s story ends with a suite of policy change across all forms of intellectual property (some 25 recommendations) that we have made to the Government. And taken in their entirety, they represent an opportunity to deliver tangible benefits to most Australians and not just a few.

Consumers and content using businesses would benefit much — from fair, certain and (for books) cheaper access to content and creative endeavour. Government and ultimately taxpayers would benefit from a substantial reduction in health costs (at least $250 million each year) by constraining the costly and strategic use of the PBS with pharmaceutical patents.

Rather than hindering innovation and creativity as claimed by some participants, IP reform would also invigorate innovation and competitive forces. Australian firms will be able to take full advantage of opportunities in cloud computing solutions. Medical and scientific researchers will be able to better utilise text and data mining. Universities and TAFEs will have the flexibility to offer MOOCs. The education sector will avoid paying millions of dollars each year to use materials that are freely available online. University students will pay less for text books and have more MOOC access. Workers needing to remain skill relevant whether due to age or structural change will also have access to skill adaptive MOOCs. Innovative SMEs will be able to innovate without fear of infringing frivolous or strategic patents and be better able to enforce legitimate rights through low-cost dispute resolution mechanisms.

All in all — there is a compelling policy narrative to be had here.

So on a concluding note, let me share a snippet I chanced upon recently. But not from Google. In the very first essay of the copyright treatise: What If We Could Reimagine Copyright?, and authored by the book’s editors Professors Giblin and Weatherall, there is a heading. And it is — ‘The ‘public interest’ (please don’t stop reading)’. It made me pause and reflect on our Inquiry report. And of the words of Theodore Roosevelt’s Man in the Arena — who spends himself in a worthy cause but if in doing so he fails, he does so by daring greatly. For in the arena of copyright policy, perhaps our final chapter should have been entitled ‘the public interest — please don’t stop believing’.

The challenge for policymakers is to focus on the near-silent majority of users, of adapters, of educators and creators that will need fair use to bring about the next wave of innovation, jobs and equitable prosperity. For its absence will simply foster a society of less haves and more have nots.

So for the Commission, fair use has become not a nice to have, or even a good to have, but a policy must have. At the end of the day we asked and answered a simple question – what is fair?

Thank you.




Help oppose the expansion of data retention to civil cases Tue, 17 Jan 2017 04:38:22 +0000 Continue reading ]]> metadataThe Attorney-General's Department is considering expanding access to the mandatory data retention scheme to include civil cases.

This could mean that retained data is made available for a range of civil matters including:

  • copyright infringement
  • family law cases
  • employment-related cases

We'll be vigorously resisting any such expansion in this scheme and instead will be pushing for a comprehensive review of this deeply-flawed scheme in 2017.

We encourage you to add your voice to this opposition by making a submission to the inquiry. Submissions are due on the 27th January.

See our guidance for help in writing your own submission.


And, sign our petition!


With your support, we can fight this unwarranted mission creep that has the potential to greatly increase the privacy threats inherent in this scheme.

Please support our work with a one-off donation or a recurring donation.

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“Everyone Made Themselves the Hero.” Remembering Aaron Swartz Thu, 12 Jan 2017 03:42:51 +0000 Continue reading ]]> Aaron Swartz photo

Ragesoss / CC BY-SA 3.0

On January 18, 2012, the Internet went dark. Hundreds of websites went black in protest of the Stop Online Piracy Act (SOPA) and the PROTECT IP Act (PIPA). The bills would have created a “blacklist” of censored websites based on accusations of copyright infringement. SOPA was en route to quietly passing. But when millions of Americans complained to their members of Congress, support for the bill quickly vanished. We called it the Internet at its best.

As we approach the fifth anniversary of the blackout, we also note a much sadder anniversary. A year after we beat SOPA, we lost one of the most active organizers behind the opposition. While being unfairly prosecuted under the Computer Fraud and Abuse Act, Aaron Swartz took his own life on January 11, 2013.

This post is by Elliot Harman and was originally published on EFF's Deeplinks blog. It has been edited slightly for local context. See the original article.

When you look around the digital rights community, it’s easy to find Aaron’s fingerprints all over it. He and his organization Demand Progress worked closely with EFF to stop SOPA. Long before that, he played key roles in the development of RSS, RDF, and Creative Commons. He railed hard against the idea of government-funded scientific research being unavailable to the public, and his passion continues to motivate the open access community. Aaron inspired Lawrence Lessig to fight corruption in politics, eventually fueling Lessig’s White House run.

There’s no better way to remember Aaron’s life and work than by hearing his words. And there’s no more inspiring account of the fight over SOPA than Aaron’s famous talk, “How We Stopped SOPA” (transcript).

Aaron warned that SOPA wouldn’t be the last time Hollywood attempted to use copyright law as an excuse to censor the Internet:

Sure, it will have yet another name, and maybe a different excuse, and probably do its damage in a different way. But make no mistake: The enemies of the freedom to connect have not disappeared. The fire in those politicians’ eyes hasn’t been put out. There are a lot of people, a lot of powerful people, who want to clamp down on the Internet. And to be honest, there aren’t a whole lot who have a vested interest in protecting it from all of that. Even some of the biggest companies, some of the biggest Internet companies, to put it frankly, would benefit from a world in which their little competitors could get censored.

Five years later, it’s clear that Aaron was right. In the courts, record labels are pushing for an interpretation of copyright law that would enable them to block entire websites because of their users’ activities, or force ISPs to cut off users’ Internet connections based on mere accusations of copyright infringement. Big content companies even wrote a memo to President-elect Trump calling for a new law that would require website owners to use copyright bots to censor their users’ activity. Threats to free speech online are on the horizon—and they’re going to come hitched to copyright law.

It’s tempting to become pessimistic in the face of countless threats to free speech and privacy. But the story of the SOPA protests demonstrates that we can win in the face of seemingly insurmountable odds. In his talk, Aaron showed how all of us can become heroes in the fight for civil liberties:

I’ve told this as a personal story, partly because I think big stories like this one are just more interesting at human scale. The director J.D. Walsh says good stories should be like the poster for Transformers. There’s a huge evil robot on the left side of the poster and a huge, big army on the right side of the poster. And in the middle, at the bottom, there’s just a small family trapped in the middle. Big stories need human stakes. But mostly, it’s a personal story, because I didn’t have time to research any of the other part of it. But that’s kind of the point. We won this fight because everyone made themselves the hero of their own story. Everyone took it as their job to save this crucial freedom. They threw themselves into it. They did whatever they could think of to do.

As a president comes to power who’s promised to ratchet up surveillance and censorship, we need heroes more than ever. Whether it’s by calling your local MP or Senators to speak up for a free and open Internet, urging your company to protect its users’ data from government surveillance, or by joining Electronic Frontiers Australia to defend digital freedom in Australia, you can be the hero in the story of how we stopped the next big threat to your digital rights.

Killswitch: the battle to control the Internet

EFA is organising a series of exclusive screenings around the country of the award-winning documentary, Killswitch: the battle to control the Internet, which tells the story of Aaron Swartz and Edward Snowden.

See the Killswitch trailer