provoking what happens in IT

new copyright laws

I am a member of the Internet Industry Association of Australia and so I get a lot of details on what is being proposed at a number of levels. at the moment, the new Copyright Amendment Bill is being passed into australian law, in a half day session before the ponies run in the melbourne cup.

I support what the IIA is trying to do at the moment and here is an excerpt of their current notice to members about the new laws.

 ‘We have identified many unintended consequences of the new laws which for the first time of ANY country in the world, impose CRIMINAL penalties on individuals – for activities which copyright lawyers themselves are having difficulty interpreting.

The 30 pages of restricted uses (‘fair dealing’ exceptions) are ambiguous and technologically specific, therefore soon outmoded. The possibility that someone might inadvertently fall foul of these is very real – for example making a copy of a video to lend to a friend or making a backup copy of iTunes library in case your computer crashes.

Taping a school performance and uploading it on the family website now will be a criminal offence if the site is publicly accessible and the family has not secured permission to reproduce the music. Performance of an unauthorised work in a ‘place of public entertainment’ whatever that means, will also be a criminal offence. Arguably, and there is nothing on the face of the legislation to counter this: singing ‘Happy Birthday’

in a public park at a birthday picnic for instance may be an offence; the act of recording it for a website will be a separate criminal offence as will the possession of equipment for making such a recording.

That these are strict liability offences means that users will not be able to argue that they didn’t know the actions were illegal. For simple offences, the penalties are up to $6600 per offence, unless you choose to pay an on the spot fine of $1320 per offence. The copying of each song is a separate offence. This will be administered by the police.

So the provision of a *single album* with 16 songs on it to a third party under the strict liability threshold will attract penalities of up to $105,600. There is also jail time if the offences are tried summarily.

Compare that to the penalty from stealing a single CD from a shop (restitution and maybe a small fine) and you will see the gross injustice here. A child of 14 who is tried under these provisions or subject to this level of penalty will have their lives ruined – one legal academic has referred to the scale of these penalties as ‘suicide-inducing’.

The mere possession of a device capable of making an infringing copy will now be a criminal offence. An infringing copy is a copy that falls outside of the 30 pages of fair dealing provisions – again there is great uncertainty about what these entail. This will potentially catch owners of PCs, mobile phones, iPods, DVD burners. The Microsoft Zune player has been identified as one example of a prohibited device under our laws because it permits the wireless sharing of a song for use three times before it deletes itself. This act will be illegal. Again the same penalties will apply. Separate offences for the possession of the device and the distribution of the songs. No intent or knowledge elements required.

I have been in touch with international lawyers for some of our member companies who are gravely concerned about the precedent these new laws will create internationally and the effect on their operations in Australia. It may well be that Australians are denied new services because the laws here are perceived as being too tough and or too uncertain.

The new provisions may also reduce the bargaining position of members seeking to negotiate licensing arrangements with local rights holders.

That their content is now subject to such stingent protections, highly limited exceptions and backed by criminal sanctions will have implications for the cost of legally provided content in Australia compared to the rest of the world. This in turn may have implications for broadband uptake.

As a consequence of the foregoing – and in particular the manner in which these laws are being rammed through Parliament – the IIA will embark on a public media campaign to alert the public about what is in store.’


November 7, 2006 - Posted by | Blogroll, technology

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