tag:theconversation.com,2011:/es/topics/digital-copyright-3784/articlesDigital copyright – The Conversation2023-04-11T14:35:53Ztag:theconversation.com,2011:article/2005072023-04-11T14:35:53Z2023-04-11T14:35:53ZNollywood could see a major boost from Nigeria’s new copyright law - an expert explains why<figure><img src="https://images.theconversation.com/files/519669/original/file-20230405-22-qvwbqt.jpg?ixlib=rb-1.1.0&rect=7%2C44%2C4913%2C3231&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The digital era contributed immensely to the growth of Nollywood, Nigeria's film industry.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/customers-look-at-nollywood-movies-in-a-shop-at-idumota-news-photo/1128688331?adppopup=true">Pius Utomi Ekpei/AFP via Getty Images</a></span></figcaption></figure><p>Nigeria has finally <a href="https://infojustice.org/archives/45182">updated its 2004 copyright law</a>, bringing it into the digital era – where the entertainment industry has been for decades already.</p>
<p>Before the late 1990s, it was difficult even to get telephone services in Nigeria. And it was very expensive for private enterprises to make films. Since then, digital technology has unleashed a multitude of ways to receive information and entertainment. </p>
<p>With the arrival of digital technology, all a filmmaker needed was a simple video recorder and a group of talented creatives. Thus modern Nollywood – the Nigerian film industry – was born.</p>
<p>Nollywood employs <a href="https://www.imf.org/en/Publications/fandd/issues/2021/06/streaming-video-services-flood-emerging-markets-behsudi">more than a million people</a> directly or indirectly, making the sector Nigeria’s second largest employer after agriculture. In 2022, <a href="https://www.statista.com/statistics/1186955/arts-entertainment-and-recreation-sector-contribution-to-gdp-in-nigeria/#:%7E:text=Arts%2C%20entertainment%20and%20recreation%20sector,GDP%20in%20Nigeria%202019%2D2022&text=In%20the%20second%20quarter%20of,when%20it%20reached%200.3%20percent.">Nollywood’s contribution to Nigeria’s GDP stood at 0.1%</a>. It’s <a href="https://www.theguardian.com/world/2014/apr/10/nigeria-africa-biggest-economy-nollywood">Africa’s most successful film industry</a> and the third largest globally after Hollywood and Bollywood in terms of the number of movies produced <a href="https://www.statista.com/statistics/1186955/arts-entertainment-and-recreation-sector-contribution-to-gdp-in-nigeria/#:%7E:text=Arts%2C%20entertainment%20and%20recreation%20sector,GDP%20in%20Nigeria%202019%2D2022&text=In%20the%20second%20quarter%20of,0.21%20percent%20of%20Nigeria's%20GDP">annually</a>. </p>
<p>But Nigeria’s copyright regime lagged behind the industry’s technological and business developments. The biggest issue was piracy, that it was easy to copy and sell other people’s work without their consent. The courts found themselves with new intellectual property problems to deal with and it was clear a new copyright regime was needed.</p>
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<img alt="A man looking at some movies in a store filled with shelfs stacked with DVDs." src="https://images.theconversation.com/files/519675/original/file-20230405-23-fw13cr.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/519675/original/file-20230405-23-fw13cr.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/519675/original/file-20230405-23-fw13cr.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/519675/original/file-20230405-23-fw13cr.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/519675/original/file-20230405-23-fw13cr.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/519675/original/file-20230405-23-fw13cr.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/519675/original/file-20230405-23-fw13cr.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">The new copyright law make provision for the digital rights of Nollywood creatives. Photo by Cristina Aldehuela/AFP via Getty Images.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/customers-look-at-nollywood-movies-in-a-shop-at-idumota-news-photo/1128688331?adppopup=true">from www.gettyimages.com</a></span>
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<p>I have spent much of my career <a href="https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=1390877">researching copyright law in Africa</a> and the <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3373358">connection between copyright and the economic growth</a> of Africa’s creative industries – films, fashion, music, literature and others. </p>
<p>I have <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4228165">written specifically about Nollywood</a>, arguing that it needs a new copyright regime if it is to thrive. And I have <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3989947">researched the kind of copyright curriculum</a> that law schools in Nigeria need in order to make the amended copyright law effective in growing its creative industries. My research supports the idea that Nigeria should deliberately include digital copyright regimes in its laws and strengthen the institutions that put them into effect. </p>
<p>And the new copyright law in Nigeria does fill gaps. Nigerians will now have a legal regime that can protect their creativity within the technological space. The new law will be useful to combat online film piracy and loss of revenue from the illegal use of copyrighted works.</p>
<p>The new law has the potential to create stability and predictability in industries like Nollywood. This is a positive step towards a more diversified national economy – and economic growth. </p>
<p>But it will be important to allow the courts to do their job. Trying to settle disputes through the Nigerian Copyright Commission – which is a new option – could complicate and prolong the litigation. That might discourage investment in the creative industry.</p>
<h2>Key benefits of the new law</h2>
<p>Nigeria’s <a href="https://www.adams.africa/africa-general/nigeria-enacts-new-copyright-act/#:%7E:text=Nigeria%20enacts%20Copyright%20Act%2C%202022,the%20Copyright%20Act%20of%202004">new</a> copyright law recognises and protects creative works that are based on current digital productive technologies. It covers films, music, performances, literary works and performances enabled by the internet and wireless devices through streaming techniques, uploads, hyperlinks and air-drops. </p>
<p><a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3373358">The law now provides</a> anti-circumvention devices. It is now a copyright infringement to illegally circumvent a computer program, software or a technical protection measure created to protect a copyrighted work. Film piracy is both a criminal offence and a civil wrong, with severe punishment and consequences. This now applies to new forms of online film piracy too. </p>
<p>The new copyright law also includes a “safe harbour” provision which protects Nollywood entrepreneurs from unnecessary legal suits. For example, online service provider business is an emerging technology that requires huge investment and is vulnerable to illegal actions. People upload unauthorised content on an online platform and this can result in lawsuits which affect investors in this sector. The safe harbour comes with responsibility on the part of the online service provider: it must quickly remove unauthorised content and must not benefit financially from it. </p>
<p>The new law gives copyright owners ways to resolve disputes over ownership of online content without necessarily going to court. </p>
<h2>Five other new aspects</h2>
<p>The new law has five more aspects that will help sustain the creative economy and promote access to knowledge and education.</p>
<ol>
<li><p><strong>Alternative dispute resolution system.</strong> This mechanism can be used to settle issues surrounding creative rights within contemporary digital platforms. The process will be organised by the Nigerian Copyright Commission, the regulator. </p></li>
<li><p><strong>Register of works.</strong> Creators are required to register their created works. Although creators of works like Nollywood films automatically own their copyright, the register – if well executed – may help with rights management and be a resource for potential investors in the industry. </p></li>
<li><p><strong>User generated content.</strong> When you take a photo of yourself and upload it on platforms like Facebook, YouTube, Instagram or TikTok, what you have done is upload content on an online service provider. You may have copyright over that content. The new copyright law clearly defines your rights and regulates infringement of such rights. </p></li>
<li><p><strong>Copyright exceptions.</strong> Sometimes a copyrighted work can be used without the copyright owner’s authorisation. The new law seems to take the approach that the public has a right to use a copyrighted work if it’s good for society. For example, anyone can use a copyrighted work for educational purposes – to teach in a classroom, for news reporting, criticism, or parody. People can also use the underlying idea in the copyrighted work (ideas aren’t protected by copyright) to create a new, “derivative” work. </p></li>
<li><p><strong>Copyright management organisation</strong>. Another new aspect is that regulators can appoint more than one copyright management organisation to serve a specific class of creative work. This will potentially further liberalise and democratise creativity. </p></li>
</ol>
<h2>The cautions</h2>
<p>Laws ought to be effective in action. If the new law is to benefit Nollywood and other digital industries, government institutions and policies will need revamping.</p>
<p>The <a href="https://www.eregistration.copyright.gov.ng/">Nigerian Copyright Commission</a> should use its new administrative powers carefully. It should be sensitive to the fact that only the courts can judge disputes of property rights.</p>
<p>The commission must stop licensing only one collective management organisation per creative category. Currently, for example, in the musical works category the commission has granted only one copyright management organisation the licence to collect royalties on behalf of creators. This has resulted in court <a href="https://ssrn.com/abstract=3260555">battles for sole control</a> over royalties. If the commission makes rights management more competitive, there may be less tension in the sector. Creatives should have more choice.</p>
<p>Nigeria will also need to pay more attention to training experts with knowledge of the digital era laws. The <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3989947">university creative and legal curriculum</a> needs reform along with the new law. </p>
<p>If the new law is to benefit Nollywood, it will have to be properly implemented. </p>
<h2>Why this matters</h2>
<p>The updated Nigerian copyright law recognises how a contemporary creative system can encourage investment in the Nigerian film industry.</p><img src="https://counter.theconversation.com/content/200507/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Samuel Samiái Andrews. does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Nigeria’s president, Muhammadu Buhari, recently signed the copyright law. Its provisions will be beneficial only if it is well implemented.Samuel Samiái Andrews., Professor, University of GondarLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1871662022-07-20T05:14:55Z2022-07-20T05:14:55ZPublishers vs the Internet Archive: why the world’s biggest online library is in court over digital book lending<figure><img src="https://images.theconversation.com/files/475010/original/file-20220720-22-rebqz8.jpeg?ixlib=rb-1.1.0&rect=0%2C0%2C5918%2C3915&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/december-29-2018-la-trobe-reading-1919650016">Shutterstock</a></span></figcaption></figure><p>Earlier this month, the Internet Archive asked a US court to <a href="https://www.reuters.com/legal/litigation/book-publishers-internet-archive-ask-court-decide-ebook-lending-fight-2022-07-08/">end a lawsuit</a> filed against it by four large book publishers.</p>
<p>The <a href="https://archive.org/">Internet Archive</a> is a not-for-profit organisation founded in 1996 that lends digital copies of books, music, movies and other digitised content to the public. It <a href="https://archive.org/about/">aims</a> to support people with print disabilities, preserve digital content for future generations and democratise access to knowledge.</p>
<p>The publishers say the Internet Archive’s digital lending practices amount to wilful copyright infringement. Authors have also <a href="https://www.theage.com.au/culture/theatre/the-future-of-libraries-or-haven-for-piracy-the-case-of-the-internet-archive-20220717-p5b27d.html">complained</a> the site hosts pirated content. </p>
<p>The Internet Archive says it is <a href="https://fingfx.thomsonreuters.com/gfx/legaldocs/jnpwedgrdpw/IP%20ARCHIVE%20COPYRIGHT%20archivesj.pdf">behaving like an ordinary library</a>, as it only loans digital copies of physical books it owns. Its supporters at the Electronic Frontiers Foundation say the publishers simply want “<a href="https://www.reuters.com/legal/litigation/book-publishers-internet-archive-ask-court-decide-ebook-lending-fight-2022-07-08/">to control how libraries may lend the books they own</a>”.</p>
<h2>The National Emergency Library</h2>
<p>Publishers were particularly concerned about the “<a href="https://blog.archive.org/national-emergency-library/">National Emergency Library</a>” set up by the Internet Archive <a href="https://www.newyorker.com/books/page-turner/the-national-emergency-library-is-a-gift-to-readers-everywhere">in March 2020</a>. This temporary project aimed to <a href="https://docs.google.com/document/d/10baTITJbFRh7D6dHVVvfgiGP2zqaMvm0EHHZYf2cBRk/mobilebasic">give teachers access</a> to digital teaching materials in the face of widespread library closures due to the COVID-19 pandemic.</p>
<p>In June 2020, the publishers Hachette, Penguin Random House, HarperCollins and John Wiley & Sons <a href="https://www.publishersweekly.com/pw/by-topic/digital/copyright/article/83584-internet-archive-to-end-national-emergency-library-initiative.html">filed a copyright infringement action</a>. The publishers appear to want to shut down not just the National Emergency Library, but all of the Internet Archive’s book-lending practices. </p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1242477219227693057"}"></div></p>
<p>The publishers claim the Internet Archive is engaging in <a href="https://storage.courtlistener.com/recap/gov.uscourts.nysd.537900/gov.uscourts.nysd.537900.1.0_1.pdf">wilful mass copyright infringement</a> by lending digital books without permission from and payment to publishers.</p>
<p>The Internet Archive argues that, because it allows only one person at a time to borrow a digital book, it is simply replicating regular library lending. However, this restriction was temporarily relaxed for the National Emergency Library. </p>
<p>Ordinary library lending does not require a payment to publishers. Once a library purchases a book, the library is free to lend it out to its members. </p>
<p>The publishers are arguing that digital books are not equivalent to physical books and should be treated differently under the law.</p>
<h2>Copyright déjà vu?</h2>
<p>Didn’t Google already win the argument about digital books years ago? Yes and no.</p>
<p>Google began digitising library books in 2002. In 2005, book publishers and authors brought <a href="https://en.wikipedia.org/wiki/Authors_Guild,_Inc._v._Google,_Inc.">a high-profile lawsuit</a> against Google for copyright infringement, which took a decade to resolve.</p>
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Read more:
<a href="https://theconversation.com/how-to-protect-authors-after-google-books-wins-its-fair-use-case-again-49363">How to protect authors after Google Books wins its 'fair use' case, again</a>
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<p>In the case against Google, US courts decided that making full copies of books and displaying snippets of those books to the public in the Google Books database is a “fair use”.</p>
<p>When deciding for Google, the courts paid particular attention to the historical purpose of copyright, which is to serve the <a href="https://scholar.google.com.au/scholar_case?case=2220742578695593916&q=Google+Books+2015&hl=en&as_sdt=2006">public interest in access to knowledge</a>.</p>
<h2>A question of markets</h2>
<p>But the Google Books decision does not mean book publishers will lose again against the Internet Archive.</p>
<p>In the United States, when deciding whether a use is fair or not, courts need to consider the extent to which the copyright owner’s markets are harmed.</p>
<p>Because book publishers often lend e-books commercially (including to libraries), the Internet Archive could be seen as harming that aspect of publishers’ market.</p>
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<img alt="" src="https://images.theconversation.com/files/475009/original/file-20220720-12-nqmrpi.jpg?ixlib=rb-1.1.0&rect=17%2C0%2C5982%2C4500&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/475009/original/file-20220720-12-nqmrpi.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=450&fit=crop&dpr=1 600w, https://images.theconversation.com/files/475009/original/file-20220720-12-nqmrpi.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=450&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/475009/original/file-20220720-12-nqmrpi.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=450&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/475009/original/file-20220720-12-nqmrpi.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=566&fit=crop&dpr=1 754w, https://images.theconversation.com/files/475009/original/file-20220720-12-nqmrpi.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=566&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/475009/original/file-20220720-12-nqmrpi.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=566&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">The Internet Archive argues it is simply acting as a library, but the court may rule differently.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/bridport-dorset-uk-november-17-2019-1562470024">Shutterstock</a></span>
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<p>It could be said that, by providing online access to books in full, the Internet Archive is doing for free what the publishers do for payment.</p>
<p>This is different to the Google Books decision, in which providing access to snippets of books in Google’s database was considered to potentially enhance the market for books.</p>
<h2>What counts as fair use?</h2>
<p>The flexibility of fair use is one thing the Internet Archive has on its side, however.</p>
<p>There is room for the court to assess the public benefit of the Internet Archive’s lending practices which, as the <a href="https://blog.archive.org/2020/03/24/announcing-a-national-emergency-library-to-provide-digitized-books-to-students-and-the-public/">National Emergency Library</a> exemplifies, are undeniably strong.</p>
<p>Assessing whether the public interest arguments are strong enough to overcome the weight of the market harm may be key to deciding who wins this case.</p>
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Read more:
<a href="https://theconversation.com/selling-mp3s-you-should-have-stuck-with-cds-13219"> Selling MP3s? You should have stuck with CDs
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<p>The Internet Archive may also have difficulty establishing that its practices are simply an extension of the traditional role of libraries, and beyond the boundaries of publisher’s legitimate markets.</p>
<p><a href="https://theconversation.com/selling-mp3s-you-should-have-stuck-with-cds-13219">In a case in 2013</a> involving a “second-hand” market for digital copies of music, US courts decided that emulating analogue models of dissemination was not enough to evade copyright infringement.</p>
<h2>Access matters in the digital age</h2>
<p>Underlying this recent dispute is a now decades-old tension between media industries born before and after the advent of the internet. </p>
<p>Prior to the internet, media and entertainment businesses made money by selling individual copies of content (think books, CDs, DVDS).</p>
<p>But individual copies have lost value in the internet era. Online, we seek access to content rather than ownership of copies of content.</p>
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<img alt="" src="https://images.theconversation.com/files/475040/original/file-20220720-24-2h1f3u.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/475040/original/file-20220720-24-2h1f3u.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/475040/original/file-20220720-24-2h1f3u.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/475040/original/file-20220720-24-2h1f3u.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/475040/original/file-20220720-24-2h1f3u.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/475040/original/file-20220720-24-2h1f3u.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/475040/original/file-20220720-24-2h1f3u.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">Streaming platforms make it easy to access music or video online without owning it, but the situation for books is less clear.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/penang-malaysia-29-aug-2018-close-1773091049">Shutterstock</a></span>
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<p>In the music and video industries, subscription or ad-supported streaming services such as Spotify and Netflix have largely prevailed.</p>
<p>However, the lawsuit against the Internet Archive shows we have not yet, in 2022, found the right legal and economic settings for access-based book-publishing models to thrive.</p>
<h2>Finding a way forward</h2>
<p>Entities like Internet Archive have been trying to operate in the grey area between old and new by, for example, limiting access to match the number of print books in storage.</p>
<p>Rather than aiming to eliminate these grey areas, publishers should look to these activities as evidence of unmet demand and a failure to be agile in times of crisis.</p>
<p>Publishers should adapt their dissemination models to the needs of society.</p>
<p>Rather than institute restrictive terms and conditions for access, they should work with libraries to build sustainable models for dissemination that ensure books are available to people who need access to our shared knowledge and culture.</p>
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Read more:
<a href="https://theconversation.com/what-is-a-book-in-the-digital-age-19071">What is a book in the digital age?</a>
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<img src="https://counter.theconversation.com/content/187166/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>After 20 years of copyright battles, publishers have still not found a way to make the most of the potential of digital books.Joanne Gray, Lecturer in Digital Cultures at The University of Sydney, University of SydneyCheryl Foong, Senior Lecturer in Law, Curtin UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/992472018-07-03T13:37:46Z2018-07-03T13:37:46ZWhy the incoming EU copyright law will undermine the free internet<figure><img src="https://images.theconversation.com/files/225932/original/file-20180703-116117-1lb7q0t.jpg?ixlib=rb-1.1.0&rect=0%2C335%2C3158%2C1749&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Back to the drawing board: the proposed copyright reform is unworkable.</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-vector/flat-style-isometric-3d-drawing-architect-796726174">Sentavio/Shutterstock</a></span></figcaption></figure><p>The European Union’s proposed reform of copyright law has reached a <a href="https://en.wikipedia.org/wiki/Directive_on_Copyright_in_the_Digital_Single_Market">critical stage</a> as the one of its key legislative measures approaches its European Parliament vote of approval. </p>
<p>The first major update to copyright legislation in almost 20 years, the intention of the <a href="https://ec.europa.eu/digital-single-market/en/news/proposal-directive-european-parliament-and-council-copyright-digital-single-market">Directive on Copyright in the Digital Single Market</a> is to modernise and make it fit for the digital age. But some very problematic provisions have entered the draft text and been <a href="http://www.eblida.org/news/shambolic-juri-committee-vote-on-copyright.html">recently approved</a> by the European parliamentary legal affairs committee. Which means that the current proposal, with all its problems, has a good chance of becoming law very soon, depending on the final plenary European Parliament vote on July 5.</p>
<h2>This is something you should care about</h2>
<p>There are many aspects to the EU’s current <a href="https://ec.europa.eu/digital-single-market/en/modernisation-eu-copyright-rules">copyright reform package</a>, of which some are <a href="http://www.wipo.int/treaties/en/ip/marrakesh/">unquestionably good ideas</a>. But the copyright directive, specifically, has generated a lot of concern – <a href="https://saveyourinternet.eu/">and public campaigns for action</a> – due to three provisions that will significantly affect the online life of millions of citizens, and not necessarily for the better. These three provisions are the right for press publishers, filtering obligations, and the provision dealing with text and data mining. We have <a href="https://theconversation.com/data-mining-why-the-eus-proposed-copyright-measures-get-it-wrong-96743">already discussed</a> this last provision, and so will focus here on the other two, more controversial measures.</p>
<h2>1. Right for press publishers</h2>
<p>Proposed as a means of returning cash generated by social media platforms, which share links and headlines to news articles back to the news organisations that produced the content, the so-called “link tax” would entail that platforms (such as Facebook or Twitter, but also many, many others) would need to pay for a licence in order to be permitted to use published articles and information about news and current events (although a recent amendment seems to <a href="https://www.create.ac.uk/consolidated-juri-report-published/">exclude its applicability to standalone hyperlinks</a>).</p>
<p>Under current law, journalistic articles are already subject to copyright protection as literary works. If you wish to republish or reproduce an article from a newspaper or magazine, you will need their permission. This protection extends to the headline of the article too, if original enough.</p>
<p>However, facts and data about current events have never been protected by copyright. If a news outlet published an article whose title was a mere description of a current event (“England qualifies to the knock-out phase of the FIFA World-cup 2018”), this is not sufficiently original to warrant copyright protection. It is a straight description of a current event, a fact. There is no creativity in it, compared to the punning headlines commonly found in some newspapers. If such things were protected, it would mean that no other news outlet or blog could report the same fact without the permission of the original publisher – which would no doubt entail payment.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/225936/original/file-20180703-116143-rhepph.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/225936/original/file-20180703-116143-rhepph.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/225936/original/file-20180703-116143-rhepph.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=267&fit=crop&dpr=1 600w, https://images.theconversation.com/files/225936/original/file-20180703-116143-rhepph.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=267&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/225936/original/file-20180703-116143-rhepph.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=267&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/225936/original/file-20180703-116143-rhepph.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=335&fit=crop&dpr=1 754w, https://images.theconversation.com/files/225936/original/file-20180703-116143-rhepph.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=335&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/225936/original/file-20180703-116143-rhepph.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=335&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Error: the ‘link tax’ will make easy hyperlinking and content sharing fraught with legal and financial obstacles.</span>
<span class="attribution"><a class="source" href="https://juliareda.eu/2018/06/article-11-13-vote/">Julia Reda</a></span>
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<p>It should appear self-explanatory why any attempt to tax factual reporting on current events is a nonsense. Economically, copyright allows a monopoly on a particular created work. By allowing monopoly rights to be extended over ideas, facts or data on current events the proposed directive is an unjustifiable limit on our fundamental rights to freedom of information – the freedom both to create and deliver information, and the freedom to receive it. Many others are affected too, such as the freedom to conduct a business, and the intellectual property of those who would reuse factual information to create something original. </p>
<p>There is <a href="http://www.europarl.europa.eu/RegData/etudes/STUD/2017/596810/IPOL_STU(2017)596810_EN.pdf">clear evidence on this conclusion</a> leading to <a href="https://www.ivir.nl/academics-against-press-publishers-right/">unprecedented scientific agreement</a> that restricting the free flow of information in this way would be disastrous.</p>
<p> </p>
<h2>2. Filtering obligations</h2>
<p>Calling this provision a “<a href="https://saveyourinternet.eu/">censorship machine</a>” may perhaps be an exaggeration, but it is undisputed that the proposal intends to make it compulsory for website hosting providers to use filtering software that will check that content being uploaded or hosted is lawful – for example, that it does not appear on any checklist of known copyright material provided by the rights-holders. Paradoxically this means that, among other things, whether a European Union citizen can say something on the internet will often depend on whether it is permitted by content filtering software developed by a US-based company.</p>
<h2>Current law: notice and takedown</h2>
<p>Under current law, platforms – the organisations that form the online infrastructure through which users interact, such as YouTube, Facebook, Twitter, Amazon, eBay or Instagram – are not liable when their users infringe copyright so long as they don’t know about the infringement and, once they are informed, they act quickly to remove it. This process is known globally as <a href="https://www.create.ac.uk/blog/2018/05/24/new-paper-this-video-is-unavailable-analyzing-copyright-takedown-of-user-generated-content-on-youtube/">notice-and-take down</a> even if there are differences across jurisdictions. This limitation of liability for platforms only lasts as long as they are unaware of the infringing material. The individual responsible for uploading a copyrighted song, video, or product, however, can still be sued for copyright infringement by the authors or more often by the rights-holders who acquired the copyright from authors – media companies, publishers and record labels, for example.</p>
<p>This mechanism is not perfect, and has already <a href="https://americanassembly.org/projects/takedown-project">attracted criticisms</a> for tilting too much in favour of copyright holders and platforms, and forgetting – as usual – about users’ rights. But it has at least so far guaranteed a certain equilibrium between the protection of investment in producing creative content, and the promotion of innovation through sharing it or parts of it online.</p>
<p>In other words the cost of copyright infringement has been spread across the three main players, right holders, platforms and users. Rights-holders such as media companies and publishers inform the platforms such as YouTube or Facebook of infringing content, the platforms take action once they are told, and users are mindful that they are ultimately responsible for what they do and say on the internet.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/225940/original/file-20180703-116152-108h2yt.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/225940/original/file-20180703-116152-108h2yt.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/225940/original/file-20180703-116152-108h2yt.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=290&fit=crop&dpr=1 600w, https://images.theconversation.com/files/225940/original/file-20180703-116152-108h2yt.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=290&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/225940/original/file-20180703-116152-108h2yt.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=290&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/225940/original/file-20180703-116152-108h2yt.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=365&fit=crop&dpr=1 754w, https://images.theconversation.com/files/225940/original/file-20180703-116152-108h2yt.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=365&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/225940/original/file-20180703-116152-108h2yt.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=365&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Error: mandatory content filtering will give enormous power to rights-holders and put users in the hands of hugely problematic filtering software.</span>
<span class="attribution"><a class="source" href="https://juliareda.eu/2018/06/article-11-13-vote/">Julia Reda</a></span>
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<h2>Proposed: automated filtering software</h2>
<p>The proposed <a href="http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:52016PC0593">copyright directive</a> would shift a much larger share of the responsibility and cost of copyright infringement to the platforms who would have to proactively police what is being uploaded on their servers. This would mean they have strong incentives to be overly restrictive so as to avoid being held liable and fined. But ultimately, again, it is the users and free speech that will bear the brunt – as they will be prevented from posting videos, songs, images and derivatives such as parodies, criticisms, discussions, news reporting, or research, in those cases when they include some unprotected elements of a protected work. Again, the <a href="https://ssrn.com/abstract=3054967">freedom of expression or privacy of a UK or EU citizen</a> will not be judged by a UK or EU court, but by the software developed by a US private company.</p>
<p>Beyond the legal niceties, perhaps the most problematic part of this suggestion is a technological point: the filtering software the law would make mandatory essentially doesn’t exist. There is no software that can expertly tell problematic uses of copyright material from allowed uses such as criticism, parody or news reporting, and accurate content recognition is still poor. For example <a href="https://www.eff.org/press/releases/lawrence-lessig-settles-fair-use-lawsuit-over-phoenix-music-snippets">university lectures</a> and <a href="http://copyrightblog.kluweriplaw.com/2014/09/02/premier-league-claims-copyright-on-football-matches-shown-in-copyright-debate/">conference talks by renown scholars teaching copyright law</a> have been blocked for copyright infringement. </p>
<p>This alone should be enough to demonstrate how poorly thought out and problematic this proposal is. There is <a href="https://www.create.ac.uk/policy-responses/eu-copyright-reform/article-13-research/">sound evidence</a> to show the <a href="https://www.eff.org/files/2018/06/12/article13letter.pdf">negative impact</a> this provision would have on <a href="http://copyrightblog.kluweriplaw.com/2018/06/29/axel-vosss-juri-report-article-13-violate-internet-users-fundamental-rights/">fundamental rights</a> – and all for <a href="https://www.ivir.nl/publicaties/download/remuneration_of_authors_final_report.pdf">very little benefit</a> in terms of additional protection for rights-holders.</p>
<p>It is true that the independent press and media necessary for a functioning democracy is under enormous financial pressure as readers go online to “free” content. Likewise, internet platforms, largely based outside the EU, often compete on an unfair basis with EU-based players, chiefly due to their dominant positions and tax avoidance. These are problems that require a solution. But the proposed methods in the copyright directive will not fix anything; on the contrary, there is <a href="https://www.create.ac.uk/policy-responses/eu-copyright-reform/">clear evidence that they will break the internet</a>.</p><img src="https://counter.theconversation.com/content/99247/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Thomas Margoni receives funding from the EU H2020 framework programme under projects openminted.eu and openaire.eu. As a member of the CREATe centre he has also received funding from AHRC, EPSRC and ESRC.</span></em></p>A new copyright reform law has many up in arms – they want you to do something about it before it comes up for a vote.Thomas Margoni, Senior Lecturer in Intellectual Property and Internet Law, University of GlasgowLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/887812017-12-08T05:34:49Z2017-12-08T05:34:49ZAustralian tech start-ups stand to lose out in proposed copyright reforms<figure><img src="https://images.theconversation.com/files/198264/original/file-20171208-11318-io08ds.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">YouTube and Facebook are protected from Australia's copyright laws, since they already operate within the US safe harbours. </span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/thailand-july-20-2017-woman-holding-682866529?src=4svGEzhh9SUrJeDkEFZ6zg-1-27">from www.shutterstock.com </a></span></figcaption></figure><p>The Australian government quietly introduced the <a href="https://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/Bills_Search_Results/Result?bId=s1115">Copyright Amendment (Service Providers) Bill 2017</a> to the Senate on Wednesday. If enacted, the bill will extend the scope of Australia’s copyright safe harbours - very slightly. </p>
<p>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.</p>
<p>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.</p>
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Read more:
<a href="https://theconversation.com/its-time-to-future-proof-australias-copyright-laws-for-the-21st-century-58785">It's time to future-proof Australia's copyright laws for the 21st century</a>
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<p>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.</p>
<p>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.</p>
<p>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. </p>
<p>The <a href="http://cyberlaw.stanford.edu/page/wilmap-european-union">European Union</a>, for example, <a href="http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32000L0031:EN:HTML">provides</a> 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.</p>
<h2>Low hanging fruit</h2>
<p>It’s the second time this year that the government has amended Australia’s copyright laws. The first was the <a href="https://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/Bills_Search_Results/Result?bId=r5832">Copyright Amendment (Disability Access and Other Measures) Act 2017</a>, passed in June, which provides <a href="https://theconversation.com/australias-copyright-reform-could-bring-millions-of-books-and-other-reads-to-the-blind-67709">greater access to copyrighted content for people with disabilities such as vision impairment</a>. </p>
<p>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.</p>
<p>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 <a href="https://www.alrc.gov.au/publications/copyright-report-122">Australian Law Reform Commission</a> and the <a href="https://www.pc.gov.au/inquiries/completed/intellectual-property#report">Productivity Commission</a>.</p>
<h2>What are the copyright safe harbours?</h2>
<p>The copyright safe harbours came about as a result of the US <a href="https://www.congress.gov/bill/105th-congress/house-bill/2281">Digital Millennium Copyright Act</a> (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. </p>
<p>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. </p>
<p>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.</p>
<h2>Why are Australian safe harbours so limited?</h2>
<p>In the 2005 <a href="http://dfat.gov.au/trade/agreements/ausfta/official-documents/Pages/official-documents.aspx">Australia-US Free Trade Agreement</a>, Australia agreed to adopt these provisions into Australian domestic law. </p>
<p>But in enacting the copyright safe harbours, parliament made a <a href="https://www.youtube.com/watch?v=XnvXIuqpiwk">drafting error</a>. 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. </p>
<p>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.</p>
<h2>What’s changing?</h2>
<p>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”.</p>
<p>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. </p>
<p>It does not extend the safe harbour to those who actually need it the most – Australia’s internet hosts and platform providers.</p>
<p>This is a seriously <a href="https://theconversation.com/australias-copyright-reform-could-bring-millions-of-books-and-other-reads-to-the-blind-67709">missed opportunity</a> for Australian innovators. There is a real risk for businesses, both large and small, who want to provide online spaces for people to communicate. </p>
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Read more:
<a href="https://theconversation.com/australian-copyright-laws-have-questionable-benefits-77178">Australian copyright laws have questionable benefits</a>
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<p>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. </p>
<p>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.</p>
<h2>Why not extend the safe harbour to Australian innovators?</h2>
<p>There were early indications that the Australian government intended to extend the safe harbours to all online service providers, but <a href="https://torrentfreak.com/google-facebook-excluded-from-aussie-safe-harbor-copyright-amendments-171205/">these amendments were shelved</a>. </p>
<p>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 <a href="http://beta.latimes.com/opinion/op-ed/la-oe-sprigman-lemley-notice-and-takedown-dmca-20160621-snap-story.html">notice-and-staydown</a>: proactive filtering of unlicensed copyright content by service providers. </p>
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Read more:
<a href="https://theconversation.com/explainer-what-is-fair-dealing-and-when-can-you-copy-without-permission-80745">Explainer: what is 'fair dealing' and when can you copy without permission?</a>
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<p>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. </p>
<p>Content owners are no longer happy with the bargain they struck in the DMCA – they allege that sites like YouTube are <a href="https://torrentfreak.com/riaa-says-youtube-is-running-a-dmca-protection-racket-160412/">gaming the system</a> of the safe harbours. </p>
<p>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.</p>
<p>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. </p>
<p>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.</p><img src="https://counter.theconversation.com/content/88781/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Kylie Pappalardo leads research projects funded by industry groups, including the Australian Communications Consumer Action Network (ACCAN) and the Australian Digital Alliance (ADA).</span></em></p>The government’s latest Copyright Amendment Bill is a step in the right direction, but it doesn’t do enough to foster innovation.Kylie Pappalardo, Lecturer, School of Law, Queensland University of TechnologyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/840002017-09-18T10:55:16Z2017-09-18T10:55:16ZMonkey selfie case finally settled – but there are many similar animal rights battles to come<figure><img src="https://images.theconversation.com/files/185878/original/file-20170913-27628-ade1pj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Untitled design</span> <span class="attribution"><span class="source">Ondrej Prosicky / Shutterstock.com</span></span></figcaption></figure><p>The furore that erupted when David Slater, a British wildlife photographer, released a “selfie” taken by a macaque monkey in 2015 has only just reached <a href="https://www.theguardian.com/world/2017/sep/12/monkey-selfie-warring-parties-reach-settlement-over-court-case">legal resolution</a>. The animal rights group, PETA (“People for the Ethical Treatment of Animals”), which had filed on behalf of the macaque, allegedly named “Naruto”, withdrew its suit against Slater when he agreed to give 25% of any royalties from the selfie to animal welfare charities.</p>
<p>This case marks a high-profile opening salvo in a struggle that will be increasingly fought among animal rights activists, protectors of human intellectual property and defenders of the free market. The case has been generally reported as being about whether a macaque that took a selfie (and gained worldwide notoriety courtesy of Wikipedia) is entitled to copyright. While this account is fine as far it goes, the case also hints at the profound challenges that digital and animal cultures pose to the law’s recognition of human uniqueness.</p>
<p>The story begins with Wikipedia, whose “open source” and “open access” approach to knowledge production makes it the ultimate free market in cyberspace. Basically <a href="https://en.wikipedia.org/wiki/Wikipedia:Policies_and_guidelines">anything is fair game</a> for inclusion on its pages if it is not prohibited either by its own editors, who are largely crowdsourced, or some explicit legal ruling.</p>
<p>When Wikipedia’s editors decided to feature the macaque selfie, Slater claimed that it was in violation of his copyright. The selfie had been taken while his camera was active but unattended in Indonesia, where he was on assignment photographing the rare monkeys. Wikipedia replied by saying that if anyone owned the copyright, it was the macaque who actually took the selfie. At that point, PETA got involved, suing Slater on behalf of the macaque for copyright infringement.</p>
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<h2>Monkey copyright</h2>
<p>The court had no problem dismissing the case, simply by arguing that copyright law was not designed to include animals as copyright-holders. But it also said that the law may be amended to include them in the future. In doing so, it tiptoed around the issue that PETA was keen on raising, namely, whether the monkey was morally entitled to whatever royalties might otherwise accrue to Slater as the copyright-holder. This helps to explain the out-of-court settlement, which left Slater the formal victor in the case. But that was really all that he was left with. Slater had been earning minuscule royalties from the selfie and even <a href="https://www.theguardian.com/environment/2017/jul/12/monkey-selfie-macaque-copyright-court-david-slater">approached bankruptcy</a> as PETA’s case against him dragged on.</p>
<p>The most striking feature of the case is not the very idea that a monkey might hold copyright, but that the internet’s relatively unregulated market environment provided the opportunity to broach the issue. The placement of a photo in virtual as opposed to physical reality radically loosens our intuitions about ownership. This became clear in the recent flurry of cases around the multiple postings of nude celebrity selfies in social media. Defendants claimed loss of control over their image in a world where image control is everything. In a more profound sense, something similar is happening to the image of the human being itself in the monkey selfie case.</p>
<p>The monkey selfie case managed to level the playing field between the human and the animal because the distinction between producer and consumer is largely erased in cyberspace. Unless the law intervenes, an online object can be reframed and reappropriated as the user wishes. And among these reframings and reappropriations are accounts of what makes the object what it is. In the end, only the explicit disqualification of animals from copyright law ended up saving Slater, even though <a href="https://www.csmonitor.com/Technology/Tech-Culture/2014/0822/US-government-Monkey-selfies-ineligible-for-copyright">some legal experts admitted</a> that Naruto may have behaved toward the camera in a way that would make a comparably situated human eligible for copyright.</p>
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<h2>Marx and a macaque</h2>
<p>Faced with Slater’s original claim to copyright infringement, Wikipedia interestingly gave little weight to the core of Slater’s argument, which was that had he not gone to Indonesia, photographed the macaques and even set up the camera so that they might use it, the selfie would never have been taken. (Of course, Slater was also the one who allowed the photos to go online in the first place.) </p>
<p>Instead Wikipedia focused on the particular monkey’s skill in arranging the camera so as to take the striking selfie. To the ears of animal rights activists, Wikipedia made Slater sound like an employer who claims ownership over his employees’ labour because he took the effort to set up the business for which they work. When only humans are involved, it’s called exploitation. Why not extend the same concept to the macaques?</p>
<p>Whatever may have motivated Wikipedia to pursue this framing of the situation, it certainly resonates with the history of extending human rights. Thanks to Karl Marx, we understand exploitation as a form of injustice that comes when workers are denied the full fruits of their labour. Wikipedia opened the door to revisit Marx, and PETA charged through it. The original capitalist rejoinder was that the employer is the one who takes the initial risk, invests the capital and sets up the environment which makes the work possible and so the workers, who might otherwise not be employed, should be satisfied with a steady wage, not a share of the profits. One hears echoes of Slater’s defence here, including his claim that his photography was part of an effort to save the macaques from extinction.</p>
<p>But bound up in this dispute is a disagreement about whether all producers are also creators. Historically, in the human sphere, Marx ultimately won this argument, largely by appealing to a conception of the human that is both universal and exceptional: all (but only) humans are both producers and creators. Like today’s copyright law, Marx recognised a clear species barrier between humans and other animals when it comes to creativity. </p>
<p>Cyberspace’s blurring of the producer/consumer distinction may be opening the door to reimagining “creator” more generally, as the source of whatever makes an object valuable to its user. In that case, the law may need to be adjusted to provide legal protection to “creative” animals in the same spirit as it historically provided protection to “creative” workers.</p><img src="https://counter.theconversation.com/content/84000/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Steve Fuller does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Digital and animal cultures pose a profound challenge to the law’s recognition of human uniqueness.Steve Fuller, Auguste Comte Chair in Social Epistemology, University of WarwickLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/807452017-07-16T19:56:06Z2017-07-16T19:56:06ZExplainer: what is ‘fair dealing’ and when can you copy without permission?<figure><img src="https://images.theconversation.com/files/177991/original/file-20170713-19649-1bw3nuh.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Fair dealing allows Australians to use copyrighted content for news and reporting.</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/television-broadcast-gallery-125283539?src=xDn2ZJz5-3d3tBIfYGrXOQ-1-2">antb/Shutterstock</a></span></figcaption></figure><p>Copyright law sometimes allows you to use someone else’s work - as long as it’s fair. In Australia this is called <a href="http://www.austlii.edu.au/au/legis/cth/consol_act/ca1968133/">“fair dealing”</a>, and it’s different to the law in the US, which is called <a href="https://www.copyright.gov/title17/92chap1.html#106">“fair use”</a>. </p>
<p>These exceptions are safety valves in copyright law – they allow lots of beneficial uses that society has agreed copyright owners should not be able to charge for, or worse, prevent.</p>
<p>There’s a serious ongoing debate about whether Australia should update its copyright laws and introduce fair use. The current law is not easy to understand – <a href="https://www.youtube.com/watch?v=x2Wc5H4tNTA">our research</a> shows that Australian creators are often confused about their rights – and many think we already have fair use.</p>
<h2>Fair dealing: What <em>can</em> you do in Australia?</h2>
<p>The key difference between “fair use” and “fair dealing” is that Australia’s “fair dealing” laws set out defined categories of acceptable uses. As we will see, “fair use” in the US is much more flexible.</p>
<p>Australian copyright law sets out five situations where use of copyrighted material without permission may be allowed:</p>
<ul>
<li>research or study</li>
<li>criticism or review</li>
<li>parody or satire</li>
<li>reporting the news</li>
<li>provision of legal advice.</li>
</ul>
<p>We’ll explain the first four, as they’re most useful to the average Australian.</p>
<h3>Research or study</h3>
<p>You do not need permission to copy a reasonable portion of copyrighted material if you are studying it or using it for research. You do not have to be enrolled in school or a university course to rely on the research or study exception. </p>
<p>For example:</p>
<ul>
<li>you can make a copy of a chapter of a book to study it</li>
<li>you can print or take screenshots of content you find on the web for your research</li>
<li>you can include quotes or extracts of other work when you publish your research.</li>
</ul>
<p>The main thing to watch out for is how much you copy. It’s fair to photocopy a book chapter but not the whole book.</p>
<h3>Criticism or review</h3>
<p>It is lawful to use a work without permission in order to critique or review it. </p>
<p>Criticism or review involves making an analysis or judgement of the material or its underlying ideas. It may be expressed in an entertaining way, or with strong opinion, and does not need to be a balanced expression to be fair. </p>
<p>For example, a film critic does not need permission to play a short clip from a film they are reviewing. They may also use film clips from other movies to compare or contrast.</p>
<figure>
<iframe width="440" height="260" src="https://www.youtube.com/embed/6OEQ0d8_oXw?wmode=transparent&start=0" frameborder="0" allowfullscreen=""></iframe>
<figcaption><span class="caption">Ozzy Man Reviews runs a popular channel that reviews existing material, relying on the fair dealing exceptions.</span></figcaption>
</figure>
<p>It’s also legal to quote an excerpt of a book or song lyrics, or to reference a photograph in another publication as part of a review or critique of the work.</p>
<p>You need to be really critiquing your source material. So, for example, a review video that is really just the highlights of a film or show probably won’t be fair. </p>
<p>This is something that tripped up Channel 10 in its clip show, The Panel. When the panellists discussed and critiqued the clips they showed, it was generally fair dealing. But when they just showed clips that were funny, a court <a href="https://eprints.qut.edu.au/30780/">found them liable for copyright infringement</a>.</p>
<h3>Reporting the news</h3>
<p>You don’t need permission to use existing copyrighted material while reporting on current or historic events. The law is designed to ensure that people can’t use copyright to stifle the flow of information on matters of public interest.</p>
<p>The key issue to check here is whether a work has been used in a way that is necessary to report the news. If the material is just used incidentally, to illustrate a story or provide entertainment, it won’t count as fair dealing.</p>
<h3>Parody or satire</h3>
<p>It is legal to use another person’s copyrighted material without their permission to make fun of them, or to make fun of another person or issue.</p>
<p>Making something funny is not sufficient to rely on this exception. The use must be part of some commentary (express or implied) on the material or some broader aspect of society. </p>
<figure>
<iframe width="440" height="260" src="https://www.youtube.com/embed/ihrRSnkvFNw?wmode=transparent&start=0" frameborder="0" allowfullscreen=""></iframe>
<figcaption><span class="caption">FriendlyJordies is known for his satirical videos that comment on and criticise politics and everyday life in Australia.</span></figcaption>
</figure>
<h2>When is a use ‘fair’?</h2>
<p>Fair dealing only applies when the use is “fair”.</p>
<p>When assessing fairness in Australia, there are a number of relevant considerations, including:</p>
<ul>
<li>how important copying is to your work (“nature and purpose of the use”)</li>
<li>the type of work being copied (less original works may not be protected as strongly as more creative works)</li>
<li>whether it is easily possible to get a licence within a reasonable time at an ordinary commercial price</li>
<li>the effect of your copying on the potential market for the original</li>
<li>the amount taken from the original work</li>
<li>whether attribution has been given to the original author. </li>
</ul>
<p>Generally, a use will be fair if you are copying for a valid reason, you don’t copy more than you need, you give attribution where possible, and your work is not directly competing in the market against the original.</p>
<p>Things to remember:</p>
<ul>
<li><strong>Is copying necessary?</strong> Copying has to be necessary for one of the purposes above. This means that it might be fair to copy part of a song to review it, but it won’t be fair if you’re just using the song as background music.</li>
<li><strong>Copy no more than you need.</strong> Sometimes you need to copy the entirety of an existing work – if you’re critiquing a photograph, for example. Usually, though, you should only copy the parts that are necessary. You can’t get away with showing a whole TV episode in order to critique one scene.</li>
<li><strong>It’s usually not fair if you’re competing with the original.</strong> This is often the most important factor. When you copy existing material for your own study, to report on the news, or to create a parody, you usually won’t be undercutting the market for the original. But if you’re just repackaging the original material in a way that might substitute for it – a consumer might be satisfied with your work <em>instead</em> of the original – then your use probably won’t be fair.</li>
</ul>
<h2>How is ‘fair use’ different – what <em>can’t</em> you do with fair dealing?</h2>
<p>In the United States, <a href="https://www.copyright.gov/title17/92chap1.html">the law</a> is more flexible, because it can adapt to allow fair use for purposes that lawmakers hadn’t thought of in advance.</p>
<p>Some of the things that are legal without getting permission in the US but not in Australia include:</p>
<p><strong>Adapting to new technologies</strong>: Fair use is flexible enough to adapt to change, but fair dealing is not. For example, in the US, fair use made it legal to use a VCR to record television at home in 1984. In Australia, this wasn’t legal until parliament created <a href="http://www.austlii.edu.au/au/legis/cth/num_act/caa2006213/sch6.html">a specific exception in 2006</a> – just about the time VCRs <a href="https://www.youtube.com/watch?v=RhDR1I4DpTo">became obsolete</a>.</p>
<p><strong>Artistic use</strong>: In Australia, it’s legal to create a parody or a critique, but not to use existing works for purely artistic purposes. For example, Australian law makes it largely unlawful for a collage artist to reuse existing copyright material to create something new.</p>
<figure>
<iframe width="440" height="260" src="https://www.youtube.com/embed/9N8IpxO6rKs?wmode=transparent&start=0" frameborder="0" allowfullscreen=""></iframe>
<figcaption><span class="caption">Machinima uses game environments to create new stories – but is not legal in Australia without permission from the game’s publisher.</span></figcaption>
</figure>
<p><strong>Uses that document our experiences</strong>: Media forms a big part of our lives, and when we share our daily experiences, we will often include copyright material in some way. Without fair use, even capturing a poster on a wall behind you when you take a selfie could infringe copyright. </p>
<p>In a famous example, Stephanie Lenz originally had an adorable 29-second clip of her baby dancing to a Prince song <a href="http://blog.jipel.law.nyu.edu/2017/03/stephanie-lenz-the-dancing-baby-and-the-changing-landscape-of-fair-use-on-youtube/">removed from YouTube</a>, due to her use of the song. She was able to get it put back up under US fair use law – but an Australian wouldn’t have that right.</p>
<figure>
<iframe width="440" height="260" src="https://www.youtube.com/embed/N1KfJHFWlhQ?wmode=transparent&start=0" frameborder="0" allowfullscreen=""></iframe>
<figcaption><span class="caption">Stephanie Lenz’s “dancing baby” video is legal under US “fair use”, but would likely infringe copyright in Australia.</span></figcaption>
</figure>
<p><strong>Technical and non-consumptive uses:</strong> The internet we love today is built on fair use. When search engines crawl the web, making a copy of every page they can in order to help us find relevant information, they’re relying on fair use. </p>
<p>Under Australian law, even forwarding an email without permission could be an infringement of copyright.</p>
<h2>The copyright reform debate</h2>
<p>Two recent government reports, from the <a href="https://www.alrc.gov.au/publications/4-case-fair-use-australia/arguments-favour-fair-use-australia">Australian Law Reform Commission</a> and the <a href="http://www.pc.gov.au/inquiries/completed/intellectual-property#report">Productivity Commission</a>, have recommended that Australia simplify its copyright law by introducing fair use. </p>
<p>Many of <a href="https://theconversation.com/the-only-way-to-fix-copyright-is-to-make-it-fair-23402">us</a> <a href="https://theconversation.com/why-australians-should-back-turnbull-in-the-stoush-over-copyright-30198">copyright</a> <a href="https://theconversation.com/its-time-to-future-proof-australias-copyright-laws-for-the-21st-century-58785">academics</a> <a href="https://theconversation.com/australian-copyright-laws-have-questionable-benefits-77178">have</a> <a href="https://theconversation.com/productivity-commission-re-ignites-copyright-wars-by-recommending-fair-use-70708">written</a> <a href="https://theconversation.com/stop-the-pirates-behind-brandis-copyright-crusade-25819">here</a> <a href="https://theconversation.com/australian-copyright-reform-stuck-in-an-infinite-loop-52974">extensively</a> <a href="https://theconversation.com/productivity-commissions-recommendations-on-ip-reform-likely-to-be-lost-in-election-haze-58576">in</a> support of fair use over the past few years, but there are still <a href="http://cmsimpact.org/fair-use-blog/fair-use-myths-debunked-australia/">many myths</a> about what the law would do. </p>
<p>It’s been suggested that introducing fair use here would provoke a “free for all” use of copyrighted work, but that hasn’t happened in the US. In fact, some of the same major studios <a href="https://www.alrc.gov.au/publications/4-case-fair-use-australia/arguments-against-fair-use-australia#_ftn115">that oppose</a> fair use in Australia are at pains to point out that they support fair use in the US because it is vital to commercial production that happens there. </p>
<p>The Motion Picture Association of America, for example, <a href="http://www.mpaa.org/mpaa-and-fair-use-a-quick-history/">says that</a> “Our members rely on the fair use doctrine every day when producing their movies and television shows”.</p>
<p>To put it simply: we don’t think that fair use will harm creators. </p>
<p>The “fair” in fair use means that it’s not about ripping off creators – it mainly allows uses that are not harmful. But we do think that fair use would provide an important benefit for ordinary Australians – both creators and users. </p>
<p><em><a href="https://www.linkedin.com/in/katherinegough/">Katherine Gough</a>, a musician and law student at Queensland University of Technology, co-authored this article.</em></p><img src="https://counter.theconversation.com/content/80745/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Nicolas Suzor is the recipient of an Australian Research Council DECRA Fellowship (project number DE160101542) and receives other project funding from the ARC. He also leads projects funded by industry groups, including the Australian Communications Consumer Action Network (ACCAN) and the Australian Digital Alliance. Nic is also the Legal Lead of the Creative Commons Australia project and the deputy chair of Digital Rights Watch, an Australian non-profit organisation whose mission is to ensure that Australian citizens are equipped, empowered and enabled to uphold their digital rights.</span></em></p>When can you use someone else’s copyright work without their permission? We explain ‘fair dealing’ and ‘fair use’ law in a handy guide.Nicolas Suzor, Associate professor, Queensland University of TechnologyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/776012017-07-12T00:35:00Z2017-07-12T00:35:00ZWhy can’t we fix our own electronic devices?<figure><img src="https://images.theconversation.com/files/176259/original/file-20170629-16051-lydbvr.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Fixing electronics devices doesn't need to be difficult.</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/electronics-repair-607246958">Krashenitsa Dmitrii/Shutterstock.com</a></span></figcaption></figure><p>Traditionally, when a car breaks down, the solution has been to fix it. Repair manuals, knowledgeable mechanics and auto parts stores make car repairs common, quick and relatively inexpensive. Even with <a href="http://blog.caranddriver.com/automakers-agree-to-fix-your-car-anywhere-in-right-to-repair-pledge/">modern computer-equipped vehicles</a>, regular people have plenty they can do: change oil, change tires and many more advanced upgrades.</p>
<p>But when a computer or smartphone breaks, it’s hard to get it fixed, and much more common to <a href="https://doi.org/10.1016/j.jclepro.2015.09.119">throw the broken device away</a>. Even small electronic devices <a href="https://unu.edu/media-relations/releases/e-waste-in-east-and-south-east-asia-jumps-63-percent-in-five-years.html">can add up</a> to <a href="https://motherboard.vice.com/en_us/article/americas-television-graveyards">massive amounts of electronic waste</a> – between <a href="http://www.electronicstakeback.com/wp-content/uploads/Facts_and_Figures_on_EWaste_and_Recycling1.pdf">20 million and 50 million metric tons</a> of electronic devices every year, worldwide. Some of this waste is recycled, but most – including components <a href="https://www.engadget.com/2017/01/16/e-waste-levels-surge-in-asia/">involving lead and mercury</a> – goes into landfills.</p>
<p>Bigger equipment can be just as difficult to repair. Today’s farmers often can’t fix the <a href="https://motherboard.vice.com/en_us/article/farmers-right-to-repair">computers running their tractors</a>, because manufacturers claim that farmers <a href="https://copyright.gov/1201/2015/comments-032715/class%2021/John_Deere_Class21_1201_2014.pdf">don’t actually own them</a>. Companies argue that specialized software running tractors and other machines is <a href="https://www.wired.com/2015/04/dmca-ownership-john-deere/">protected by copyright and patent laws</a>, and allowing farmers access to it would harm the companies’ intellectual property rights.</p>
<p>Users’ <a href="https://motherboard.vice.com/en_us/article/farmers-right-to-repair">right to repair</a> – or to pay others to fix – objects they own is in jeopardy. However, in our surveys and examinations of product life cycles, my colleagues and I are finding that supporting people who want to repair and reuse their broken devices can yield benefits – including profits – for electronics manufacturers.</p>
<h2>A corporate quandary</h2>
<p>At least eight states – Nebraska, Kansas, Wyoming, Illinois, Massachusetts, Minnesota, New York and Tennessee – <a href="https://www.wired.com/2017/03/right-to-repair-laws/">are considering laws</a> that would require companies to let customers fix their broken electronics. The proposals typically make manufacturers sell parts, publish repair manuals and make available diagnostic tools, such as scanning devices that identify sources of malfunctions. In an encouraging move, the U.S. Copyright Office suggested in June that similar rules should <a href="https://motherboard.vice.com/en_us/article/d3zbnz/the-government-wants-to-permanently-legalize-the-right-to-repair">apply nationwide</a>. And the U.S. Supreme Court recently ruled that companies’ patent rights <a href="https://www.nytimes.com/2017/05/30/business/supreme-court-patent-rights-lexmark.html">don’t prevent people from reselling</a> their electronics privately.</p>
<p>Seen one way, these regulations put manufacturing companies in a tough spot. Manufacturers can <a href="http://www.smithsonianmag.com/innovation/fight-right-repair-180959764/">earn a lot of money</a> from selling authorized parts and service. Yet to remain competitive, they must constantly innovate and develop <a href="https://qz.com/1011782/iphone-8-apples-aapl-next-iphone-may-have-new-full-screen-design-new-video-shows/">new products</a>. To keep costs down, they can’t keep making and stocking parts for old and <a href="https://9to5mac.com/2017/05/27/apple-moving-macbook-pro-air-and-iphone-to-obsolete/">outdated devices forever</a>. This leads to what’s called “<a href="http://dx.doi.org/10.1080/19397038.2015.1099757">planned obsolescence</a>,” the principle that a company designs its items to have relatively short useful lives, which will end roughly around the time a new version of the product comes out.</p>
<p>However, our research suggests that companies can take a different approach – designing and building products that can be refurbished and repaired for reuse – <a href="https://doi.org/10.1016/j.resconrec.2016.02.014">while building customer loyalty and brand awareness</a>. By analyzing surveys of hobbyists and the repair industry, we’ve also found that there are barriers, such as a lack of repair manuals and spare parts, that <a href="https://doi.org/10.1016/j.resconrec.2016.09.013">impede the growth of the repair industry</a> that can be improved upon.</p>
<h2>Consumers want to fix their devices</h2>
<p>Even as machines and devices have become less mechanical and more electronic, we have found that customers still expect to be able to repair and continue using electronic products they purchase. When manufacturers support that expectation, by offering repair manuals, spare parts and other guidance on how to fix their products, they build customer loyalty.</p>
<p>Specifically, we found that customers are more likely to buy additional products from that manufacturer, and are more likely to <a href="https://doi.org/10.1016/j.resconrec.2016.02.014">recommend that manufacturer’s product</a> to friends. The math here is simple: More customers using a company’s products, whether brand-new or still kicking after many years, equals more money for the business.</p>
<p>Our research also shows that the <a href="https://doi.org/10.1016/j.resconrec.2016.02.014">failure of most electronic devices</a> is due to <a href="https://doi.org/10.1016/j.resconrec.2016.09.013">simple accidents</a> such as dropping a device or spilling water on it. The most common problem is a broken screen. There are other issues, too – such as batteries that no longer hold their charges or circuit boards that just stop working.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/176258/original/file-20170629-16091-cq0ywx.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/176258/original/file-20170629-16091-cq0ywx.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/176258/original/file-20170629-16091-cq0ywx.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/176258/original/file-20170629-16091-cq0ywx.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/176258/original/file-20170629-16091-cq0ywx.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/176258/original/file-20170629-16091-cq0ywx.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/176258/original/file-20170629-16091-cq0ywx.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/176258/original/file-20170629-16091-cq0ywx.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Simple repairs don’t require much work, nor many tools.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/smartphone-broken-small-screwdrivers-repair-on-521520520">arrowsmith2/Shutterstock.com</a></span>
</figcaption>
</figure>
<p><a href="http://www.consumerreports.org/cro/magazine/2014/02/repair-or-replace/index.htm">Even nontechnical users</a> often want to pay someone to clean their devices and replace parts such as damaged screens and old batteries. If manufacturers provided access to replacement parts, more damaged items could be repaired, extending their usefulness. Apple could seize an opportunity here: It has just begun <a href="http://appleinsider.com/articles/17/05/17/apple-commences-iphone-se-production-in-india-with-assembly-partner-wistron">assembling older iPhone models in India</a>, which means it is still making parts that others could use to fix the devices they already have.</p>
<h2>Helping consumers, companies and the environment</h2>
<p>Technology manufacturers should take steps to promote customers’ right to repair their broken devices, which helps cut down on electronic waste and boost brand loyalty. But if they won’t, laws and regulations can help.</p>
<p>In France, for example, a 2015 law requires manufacturers to tell customers – before they purchase an item – for <a href="https://www.fastcompany.com/3043252/this-new-french-law-is-designed-to-make-products-easier-to-repair-so-th">how long repair parts will be available</a>. That lets consumers decide how much they want to factor in the possibility for repairs when deciding whether to buy something new.</p>
<p>Supporting repair rights can also bring economic benefits to more than just the technology sector. There were 4,623 consumer electronic repair and maintenance companies in 1998 in the U.S. By 2015, that number <a href="https://doi.org/10.1016/j.resconrec.2016.09.013">had dropped to 2,072</a>. Independent vendors are creating online marketplaces where people can buy and sell used <a href="https://www.newegg.com/Refurbished/Store">and repaired</a> gadgets. Other companies like <a href="https://www.ifixit.com/">iFixit</a> and <a href="https://repaircafe.org/en/">Repair Cafe</a> are creating networks of people who share information on repairing electronics, and even <a href="https://www.ubreakifix.com/">getting groups of people together in person</a> to work on their devices. </p>
<p>Meanwhile 3-D printing continues to make it easier and cheaper for people to produce <a href="http://www.ubergizmo.com/2016/08/asus-3d-print-parts-for-motherboard/">replacement parts</a> for older devices. </p>
<p>Companies shouldn’t fear people taking too much into their own hands, though: While it’s been possible for a few years to 3-D print and hand-assemble <a href="http://www.telegraph.co.uk/technology/news/11217005/Make-your-own-computer-worlds-first-3D-printed-laptop.html">entire computers</a>, they’re <a href="https://www.theverge.com/circuitbreaker/2017/2/3/14501812/olimex-teres-i-open-source-diy-laptop">not very good</a>. People are much more likely to buy corporate-made devices; they just <a href="https://www.bostonglobe.com/business/2017/02/22/you-gotta-fight-for-right-repair-your-digital-devices/rEDZDfIAdMeRejijuprdIO/story.html">want to be able to repair them</a> when they break down.</p><img src="https://counter.theconversation.com/content/77601/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Sara Behdad receives funding from National Science Foundation. Any opinions, findings, and conclusions or recommendations expressed in this article are those of the authors and do not necessarily reflect the views of the National Science Foundation. </span></em></p>Many companies are working to prevent customers from fixing broken smartphones and tractors. By doing so, they’re missing out on an opportunity to build customer loyalty and boost profits.Sara Behdad, Assistant Professor of Mechanical and Aerospace Engineering, University at BuffaloLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/677092017-03-23T04:37:47Z2017-03-23T04:37:47ZAustralia’s copyright reform could bring millions of books and other reads to the blind<figure><img src="https://images.theconversation.com/files/162100/original/image-20170322-25755-1y5edm2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Rule change should make it easier for more copyright works to be made available in Braille.</span> <span class="attribution"><span class="source">Chinnapong/Shutterstock</span></span></figcaption></figure><p>Proposed changes to Australia’s copyright law should make it easier for people to create and distribute versions of copyrighted works that are accessible to people with disabilities. </p>
<p>The <a href="http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/Bills_Search_Results/Result?bId=r5832">Copyright Amendment (Disability Access and other Measures) Bill</a> was introduced to Parliament on Wednesday.</p>
<p>If passed, it would enable people with disabilities to access and enjoy books and other material in formats they can use, such as braille, large print or <a href="http://www.daisy.org/daisypedia/daisy-digital-talking-book">DAISY audio</a>.</p>
<p>The Australian Human Rights Commission has long been calling for action to end the “<a href="https://www.humanrights.gov.au/news/stories/australia-can-help-end-world-book-famine">world book famine</a>” – only 5% of books produced in Australia are available in accessible formats. This means that people with vision impairment and other reading disabilities are excluded from a massive proportion of the world’s knowledge and culture.</p>
<p>Under the current law, educational institutions and other organisations can produce accessible copies of books, but the system is slow and expensive. Only a small number of popular books are available, and technical books that people need for work are often out of reach. </p>
<p>Technology should make accessibility much easier, but publishers have been slow to enable assistive technologies. </p>
<p>People with disabilities have long complained that they are not able to take advantage of new technologies such as inbuilt screen reading software on computers and smartphones. </p>
<p>Amazon’s Kindle, for example, used to allow text-to-speech to help blind people read books, but Amazon gave in to publishers’ fears and <a href="https://www.wired.com/2014/12/e-books-for-the-blind-should-be-legal/">allowed them to disable the feature</a>. Apple’s electronic books are much better, but there are still major gaps. </p>
<p><a href="https://eprints.qut.edu.au/78325/">Our research</a> looked at books available through electronic academic databases, and found that most ebook libraries have some features that frustrate full accessibility.</p>
<p>The Copyright Act in its current form does grant statutory licences for copying by institutions that assist people with disabilities, but there are no comprehensive exceptions for individuals. <a href="http://espace.library.uq.edu.au/view/UQ:258758">Research shows</a> that even students in resourced universities have trouble accessing the materials they need to study.</p>
<h2>A fair right for people with disabilities</h2>
<p>The new Bill aims to create a clear right for individuals to copy materials into accessible formats. Critically, this new “fair dealing” exception also allows other people to help out by creating and sharing accessible versions of books and other materials.</p>
<p>This is a major milestone in <a href="https://theconversation.com/the-only-way-to-fix-copyright-is-to-make-it-fair-23402">making copyright law more fair</a>. It implements Australia’s obligations under the <a href="http://www.wipo.int/treaties/en/ip/marrakesh">Marrakesh Treaty</a>, a landmark international agreement designed to <a href="https://eprints.qut.edu.au/61501/">stop copyright getting in the way of accessibility</a>.</p>
<p>The Marrakesh Treaty, once implemented around the world, will enable organisations to <a href="https://theconversation.com/the-marrakesh-treaty-could-bring-the-worlds-books-to-the-blind-27101">share accessible books to the people who need them in other countries</a>. This is an extremely important change as the costs of scanning and making a book accessible are so high that most blind people are denied access to most works.</p>
<p>Once the laws are clarified, the accessibility of books will increase dramatically. Google has been busy digitising the world’s books, and it has <a href="https://theconversation.com/google-books-wins-fair-use-but-australian-copyright-lags-20351">given those books</a> to a charity called <a href="https://www.hathitrust.org/">Hathi Trust</a>. Soon, Hathi Trust will be able to share those books with blind people around the world.</p>
<p>Google’s partnership with Hathi Trust means that blind people will soon be able to access more than 14 million volumes almost overnight. This figure may grow quickly as Google has already digitised more than 30 million books. Very soon, the proportion of accessible books might jump from 5-10% to closer to 30%.</p>
<h2>A missed opportunity</h2>
<p>The Bill also proposes a number of other long awaited updates to Australian copyright law. But one thing the Bill does not do is fix a drafting error that has plagued Australian copyright law for the past decade. </p>
<p>When Australia signed the <a href="http://dfat.gov.au/trade/agreements/ausfta/pages/australia-united-states-fta.aspx">Australia - US Free Trade Agreement</a>, we introduced a system of “notice-and-takedown” that would protect copyright owners. The system provides a way for people to ask online service providers to remove content that infringes copyright.</p>
<p>But the law was poorly drafted. It applied only to a small number of Internet Service Providers (such as Telstra, Optus and iiNet) but not the larger category of search engines and content hosts.</p>
<p>This means it does not apply to giants such as Google and Facebook. It also means that other organisations that host content uploaded by users, such as The Conversation, are also excluded.</p>
<p>These safe harbours provide a shield in case people – outside of the service provider’s control – use their networks to upload content that infringes any copyright laws. </p>
<p>The reason they are so critical is that it is often prohibitively expensive for the companies that host internet content to check all content before a user uploads it.</p>
<p>But the safe harbours aren’t free. The quid pro quo is that the ISP must introduce a notice and takedown scheme. This is one of the few effective mechanisms to get content removed from the internet, and has been a crucial part of protecting the rights of publishers and authors online. </p>
<figure>
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<figcaption><span class="caption">Professor Kim Weatherall explains the drafting error in Australia’s copyright safe harbours.</span></figcaption>
</figure>
<p>When the new Bill was first drafted, it was set to fix the drafting error that excludes content hosts, search engines, universities and other organisations from the scheme. But the Bill introduced this week contains no such fix.</p>
<p>The extension of these safe harbours has become highly politicised, with major rightsholders warning that it <a href="https://torrentfreak.com/google-with-no-fair-use-its-more-difficult-to-innovate-170223/">looked like a win for Google and Facebook</a>.</p>
<p>The past two decades of the internet in the United States have shown how critical the safe harbours are to all developers, <a href="http://americanassembly.org/publications/notice-and-takedown-everyday-practice">both large and small</a>. They reduce uncertainty and allow innovation in the ways that people access content. </p>
<p>So while this new Bill is important, it is also a missed opportunity. The drafting error in Australia’s copyright safe harbours means that neither tech companies or authors and publishers are well protected.</p>
<hr>
<p><em>Tess Van Geelen, a Research Assistant at the Faculty of Law, Queensland University of Technology, contributed to this article.</em></p><img src="https://counter.theconversation.com/content/67709/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Nicolas Suzor is the recipient of an Australian Research Council DECRA Fellowship (project number DE160101542) and receives other project funding from the ARC. He also leads projects funded by industry groups, including the Australian Communications Consumer Action Network (ACCAN) and the Australian Digital Alliance.
Nic is also the Legal Lead of the Creative Commons Australia project and the deputy chair of Digital Rights Watch, an Australian non-profit organisation whose mission is to ensure that Australian citizens are equipped, empowered and enabled to uphold their digital rights.</span></em></p>A proposed tweak to the copyright laws should make it easier to reversion protected works for people with disabilities.Nicolas Suzor, Associate professor, Queensland University of TechnologyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/553722016-04-26T10:01:51Z2016-04-26T10:01:51ZWhy Prince’s music will become more accessible after his death<p>Last Thursday, the world was shocked by the untimely death of Prince, the highly prolific, Grammy-winning music icon who not only transformed music and the record industry but also provoked questions about <a href="https://theconversation.com/princes-gift-was-that-he-stepped-right-out-of-racisms-symbolic-logic-58308">race</a>, gender and <a href="https://theconversation.com/an-elusive-virtuoso-who-embraced-ambiguity-and-female-desire-58274">sexuality</a>.</p>
<p>Apart from his songs, musical genius and virtuosic skills, the “Purple Rain” singer is also widely recognized for his fierce <a href="https://theconversation.com/how-princes-quest-for-complete-artistic-control-changed-the-music-industry-forever-58267">protection</a> of artistic freedom and his longstanding fight with his first record label, Warner Bros.</p>
<p>It seems only a few years ago that he performed in concerts with the word “slave” <a href="http://www.latimes.com/opinion/opinion-la/la-ol-prince-tidal-spotify-20160422-story.html">written</a> on his face. Partly as an act of protest, he also changed his name to an unpronounceable symbol, causing people to refer to him as “the artist formerly known as Prince.”</p>
<p>In the past few years, the singer remained reluctant to work with internet streaming platforms. Today, his music remains largely <a href="http://www.thedailybeast.com/articles/2016/04/21/why-you-can-t-listen-to-prince-s-music-after-his-death.html">unavailable</a> on Spotify and Apple Music. A rare exception is Jay Z’s <a href="http://www.billboard.com/articles/news/6656697/prince-tidal-exclusive-hitnrun-album-release-stream">Tidal</a>, which released his “HITnRUN” albums.</p>
<p>Commentators have been quick to discuss Prince’s positions on <a href="https://theconversation.com/why-its-tough-to-find-princes-songs-online-and-other-musicians-are-thankful-58321">intellectual property rights</a> and the <a href="https://theconversation.com/how-princes-quest-for-complete-artistic-control-changed-the-music-industry-forever-58267">music business</a>. Yet, few have explored whether Prince’s music will become more readily available after his death.</p>
<p>Although it is difficult to predict how his unreleased materials will be handled – considering that he does not have any apparent <a href="http://news.sky.com/story/1683495/will-we-ever-hear-the-music-in-princes-vault">heir</a> – a quick review of what happened after the death of other famously reclusive artists may offer some useful hints.</p>
<h2>The vault</h2>
<p>It is a well-known secret that Prince accumulated a large trove of unreleased materials in a <a href="http://money.cnn.com/2016/04/22/media/prince-vault/">vault</a> – or <a href="http://www.rollingstone.com/music/news/princes-lost-rolling-stone-interview-i-dont-think-about-gone-20160422">vaults</a> – in his Paisley Park studio complex.</p>
<p>In interviews conducted last year by <a href="http://www.theguardian.com/music/2015/mar/19/i-would-hide-4-u-whats-in-princes-secret-vault">The Guardian</a> and the <a href="http://www.bbc.com/news/magazine-31962180">BBC</a>, Brent Fischer, Prince’s longtime collaborator, suggested that this vault contained about 70 percent of the material the singer had ever produced. This figure is mind-boggling considering that Prince <a href="https://en.wikipedia.org/wiki/Prince_albums_discography">released</a> close to 40 studio albums.</p>
<p>Moreover, because of Prince’s widely publicized fight with his record label in the 1990s, many <a href="http://news.sky.com/story/1683495/will-we-ever-hear-the-music-in-princes-vault">believe</a> that the vault will contain some of Prince’s finest work – material that the singer might have chosen not to release amid that struggle. The last album released by Warner Bros. in the 1990s was ironically titled “The Vault: Old Friends 4 Sale.”</p>
<h2>The King of Pop</h2>
<p>To some extent, the materials in Prince’s vault remind us of an equally valuable trove of unfinished tracks Michael Jackson left behind following his unexpected death in 2009.</p>
<p>As an avid “MJ” fan, I still remember the suddenly much wider use of his music in movies and TV programs shortly after his death – “Bad” in the movie “Megamind” being a notable example.</p>
<figure>
<iframe width="440" height="260" src="https://www.youtube.com/embed/qacYOQKd4Rw?wmode=transparent&start=0" frameborder="0" allowfullscreen=""></iframe>
</figure>
<p>Controversies also arose over the posthumous release of his unfinished tracks – as part of the albums “MICHAEL” and “Xscape.” While some – such as <a href="http://www.billboard.com/articles/columns/the-juice/6092238/quincy-jones-on-michael-jacksons-xscape-its-about-money">Quincy Jones</a>, Jackson’s former producer – questioned the motives behind the release of these albums, others were disappointed by the extra production and packaging that had <a href="http://the-artifice.com/michael-jackson-xscape-posthumous-album/">gone</a> into the original material without the artist’s input. </p>
<p>Regardless of one’s views, however, the much wider use of Jackson’s music, along with increased merchandise sales, quickly catapulted the singer back to eye-popping commercial success. Today, Jackson is at the top of Forbes’ <a href="http://www.forbes.com/dead-celebrities/#17ef7fad6a51">list</a> of “top-earning dead celebrities,” bringing in US$115 million in last year alone.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/120090/original/image-20160425-22360-cyhw9j.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/120090/original/image-20160425-22360-cyhw9j.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=404&fit=crop&dpr=1 600w, https://images.theconversation.com/files/120090/original/image-20160425-22360-cyhw9j.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=404&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/120090/original/image-20160425-22360-cyhw9j.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=404&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/120090/original/image-20160425-22360-cyhw9j.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=508&fit=crop&dpr=1 754w, https://images.theconversation.com/files/120090/original/image-20160425-22360-cyhw9j.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=508&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/120090/original/image-20160425-22360-cyhw9j.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=508&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Michael Jackson’s music had a renaissance after his death.</span>
<span class="attribution"><span class="source">Reuters</span></span>
</figcaption>
</figure>
<h2>Franz Kafka</h2>
<p>Estates and their lawyers have been widely criticized for being greedy and for taking aggressive legal actions to limit public access to the works of the deceased. While property owners have unrestricted rights to dispose of their property – including inheritance – copyrights have become particularly problematic considering that they last for 70 years after an author’s death.</p>
<p>Nevertheless, some estates have managed to make the works of the deceased more widely available. A leading example concerns Franz Kafka. Before he died at the young age of 41, he left specific <a href="http://www.nytimes.com/2010/09/26/magazine/26kafka-t.html?_r=0">instructions</a> to his friend and executor, Max Brod: </p>
<blockquote>
<p>My last request: Everything I leave behind me … in the way of diaries, manuscripts, letters (my own and others’), sketches and so on, to be burned unread.</p>
</blockquote>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/120091/original/image-20160425-22383-ohdafd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/120091/original/image-20160425-22383-ohdafd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/120091/original/image-20160425-22383-ohdafd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=902&fit=crop&dpr=1 600w, https://images.theconversation.com/files/120091/original/image-20160425-22383-ohdafd.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=902&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/120091/original/image-20160425-22383-ohdafd.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=902&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/120091/original/image-20160425-22383-ohdafd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1134&fit=crop&dpr=1 754w, https://images.theconversation.com/files/120091/original/image-20160425-22383-ohdafd.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1134&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/120091/original/image-20160425-22383-ohdafd.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1134&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Much of what Kafka wrote would never have been read had his friend followed his wishes.</span>
<span class="attribution"><span class="source">Kafka statue via www.shutterstock.com</span></span>
</figcaption>
</figure>
<p>Having already verbally declined his friend’s request in person, Brod refused to burn the manuscripts after the writer’s death. Had he followed Kafka’s instructions, we would never have read some of Kafka’s masterpieces, such as “The Trial” and “The Castle.” We might never even have known Kafka’s talents, as he published <a href="http://www.nytimes.com/2010/09/26/magazine/26kafka-t.html?_r=0">less</a> than 450 pages in his lifetime!</p>
<h2>J.D. Salinger</h2>
<p>A more recent example is J.D. Salinger, the author of “Catcher in the Rye.” Despite his wildly successful novel about teenager Holden Caulfield, he withdrew from public life shortly after the novel’s publication in 1951.</p>
<p>Although Salinger continued to write – and had publicly <a href="http://www.theguardian.com/books/2013/aug/25/salinger-authors-claim-posthumous-works-published">admitted</a> to doing so – the lack of publications since the early 1960s created a longstanding mystery. </p>
<p>Salinger died in 2010. A few years later, a biographer revealed that he might have left instructions to his estate to <a href="http://www.theguardian.com/books/2013/sep/03/new-jd-salinger-fiction-documentary">publish</a> as many as five novels after his death. The release of these novels would not only shed light on the author’s reclusive life but also help us understand better Holden Caulfield’s character.</p>
<h2>Posthumous releases</h2>
<p>It remains to be seen what materials from Prince’s vault will be finally released. If past experience with recently deceased music superstars provides any guide, a considerable quantity of these previously unreleased materials will eventually become commercially available – whether Prince would have liked it or not.</p>
<p>Although some will certainly argue that these materials should have been kept hidden given the artist’s lifetime choices, strong support can be drawn from his longstanding fight with record labels, not to mention his 2012 video clip <a href="http://www.theguardian.com/music/2015/mar/19/i-would-hide-4-u-whats-in-princes-secret-vault">teasing</a> to release “every good thing in the vault.” </p>
<p>Hopefully, Prince’s estate will be able to go through the vault carefully to develop a plan to disseminate the unreleased materials in ways that will honor the artist’s legacy – perhaps as <a href="http://www.rollingstone.com/music/news/princes-lost-rolling-stone-interview-i-dont-think-about-gone-20160422">“time capsule”</a> albums. After all, if these materials remain locked up in a vault, it will be a loss to not only his estate but also his many fans around the world.</p><img src="https://counter.theconversation.com/content/55372/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Peter K. Yu does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>What happened after artists such as Michael Jackson, J.D. Salinger and Franz Kafka died suggests it’ll be hard to keep Prince’s unpublished work out of the public eye, regardless of his wishes.Peter K. Yu, Professor of Law and Co-Director of the Center for Law and Intellectual Property, Texas A&M UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/529742016-01-17T23:30:08Z2016-01-17T23:30:08ZAustralian copyright reform stuck in an infinite loop<p>Copyright matters. It is a body of law that affects what we know, how we experience and understand the world, and what we are allowed to do with the knowledge we gain. But for most of us copyright is more of a snarl. We only know of it as a restriction that complicates how we interact with each other. It is not often experienced as regulation that helps make good new things happen.</p>
<p>Malcolm Turnbull’s “ideas boom”, his <a href="http://www.innovation.gov.au/page/agenda">innovation and science agenda</a>, is supposed to make innovation happen by <a href="http://www.afr.com/leadership/innovation/malcolm-turnbulls-innovation-lovefest-20151210-glkiwk">spending A$1.1 billion over four years.</a> The policy papers don’t include any mention of copyright. But copyright rules and regulations sit behind all the agendas found in the innovation statement.</p>
<p>So what is happening with the rules that will affect our capacity to “leap, connect, sparkle and guide” others? There is a copyright agenda underway. And in short, under Attorney-General George Brandis, there has been a lot of twitching and jerking.</p>
<p>Brandis did not have a clean slate. When he took his place in the Abbott ministry there was already an extensive and much needed review of copyright underway, established by the former Labor government. </p>
<p>Headed up by UTS Professor Jill McKeough, the Australian Law Reform Commission’s <a href="http://www.alrc.gov.au/inquiries/copyright-and-digital-economy">Copyright and the Digital Economy Inquiry</a> undertook an exhaustive process to produce this <a href="http://www.alrc.gov.au/publications/copyright-report-122">final report</a>.</p>
<p>Brandis sat on the final report for some time, tabling it in Parliament on February 13, 2014. The day after he gave <a href="http://www.alrc.gov.au/sites/default/files/pdfs/140214_-_ag_speech_-_ada_copyright_forum_2.pdf">a speech</a> where he agreed with the problems highlighted in the report:</p>
<blockquote>
<p>“The Copyright Act is overly long, unnecessarily complex, often comically outdated and all too often in its administration, pointlessly bureaucratic.” </p>
</blockquote>
<p>But rather than engage with the recommendations of the report, he raised the furphy of piracy — an issue specifically excluded from the ALRC terms of reference, reserved for trade discussions conducted without public input — and then in August 2015 the Abbott government established yet another review.</p>
<p>The Productivity Commission <a href="http://www.pc.gov.au/inquiries/current/intellectual-property#draft">inquiry into Austraia’s intellectual property system</a> looks beyond copyright. Ostensibly there is a wide-ranging inquiry into IP laws and “incentives for innovation and investment, including freedom to build on existing innovation”. </p>
<p>However successive governments have negotiated away many areas of Australian IP policy in international agreements, beginning with Chapter 17 of the 2005 <a href="http://dfat.gov.au/about-us/publications/trade-investment/australia-united-states-free-trade-agreement/Pages/chapter-seventeen-intellectual-property-rights.aspx">the US-Australia Free Trade Agreement</a>, and more recently the 2015 <a href="http://theconversation.com/au/topics/trans-pacific-partnership">Trans-Pacific Partnership</a>. These agreements, negotiated without public scrutiny or evidence about impact, limit our capacity to determine the national interest in fashioning the balance of our IP laws.</p>
<p>In terms of copyright, the Productivity Commission inquiry covers much of the same ground as the ALRC: efficiency and balance, adaptability for the future and evidence based reform. In response to the <a href="http://www.pc.gov.au/inquiries/current/intellectual-property/issues">issues paper</a> 115 submissions were received. There will be another round of public submissions when the discussion paper is released in March/April 2016. So many rounds of public consultation going on, but to what end?</p>
<p>Among the raft of government business hidden in the Christmas break an <a href="https://www.communications.gov.au/have-your-say/updating-australias-copyright-laws">Exposure Draft</a> was released by the Department of the Communication and Arts (DOCA) on December 23, 2015. There is a public invitation for comment until February 12, 2016.</p>
<p>The background paper to the Exposure Draft notes: </p>
<blockquote>
<p>“It is appropriate to proceed with the amendments contained in the Bill before the [Productivity] Commission reports as those amendments simplify the operation of the Act and are likely to be consistent with the recommendations (if any) made by the Commission.” </p>
</blockquote>
<p>However the draft provisions are far from simple to follow. They completely fail to address basic issues affecting those who legally access material held in public collections. The bill is based on fantasies about how institutions work in practice and ignores the public’s experience of them altogether. Mere oversight or part of the government’s design?</p>
<p>For example, section 113M allows libraries and archives to make “preservation copies” of original material that is of historical or cultural significance to Australia, but they are not allowed to make these copies available to patrons except through a terminal on site. As a researcher I am not allowed to make an electronic copy of the material so I can use it in writing up my research. As is common practice in libraries I would probably be allowed to transcribe a document by hand. </p>
<p>However transcribing by hand is, as a matter by law, no different to a digital reproduction. Why does this law require me to spend public research money to physically attend the institution, perhaps also requiring an airfare and accommodation expenses, so I can take out my quill?</p>
<p>The bill sets out excessively complicated rules that allow institutions to provide material that might or might not be in copyright to researchers. The rules only apply to a limited number of institutions. The ability to comply with them is based on the incorrect assumption that collections are catalogued to the Nth degree where it is easy to determine who the author was, the date of making the work, the date of publication of the work, the date of the author’s death, relevant details of the current estate holder. </p>
<p>These collections have little commercial, educational or cultural value if left dead, buried and forgotten because of lousy copyright laws. Institutional purpose and the value of the collection is generated when the material is utilised, repurposed, and made to bloom again, by users of the collection.</p>
<p>If the “ideas boom” is to move from mediocre slogan to stimulate real “leaps” and progress so that the “brightest” can shine, there is a need for more than a redistribution of public funds to starving public institutions. Copyright law reform needs to be taken seriously as a political concern, not left as a plaything shunted from inquiry to inquiry, while other games are carried on behind the scenes.</p><img src="https://counter.theconversation.com/content/52974/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Kathy Bowrey receives funding from the Australian Research Council. She was a member of the Australian Law Reform Commission 'Copyright and the Digital Economy' Advisory Committee.</span></em></p>Fixing copyright is essential for Malcolm Turnbull’s ‘ideas boom’ to succeed, but you wouldn’t know it given the slow and repetitive approach to copyright reform.Kathy Bowrey, Professor, Faculty of Law, UNSW SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/525662016-01-08T11:17:47Z2016-01-08T11:17:47ZHong Kong copyright battle tests U.S. candidates’ commitments to free speech<p>Earlier this week, the Hong Kong legislature <a href="https://www.hongkongfp.com/2015/12/18/legco-meeting-on-controversial-copyright-bill-adjourned-debate-to-continue-next-year/">resumed</a> its debate on a new copyright amendment bill, which aims to strengthen protection in the digital environment. The debate <a href="https://www.hongkongfp.com/2016/01/07/legco-meeting-on-copyright-bill-adjourned-due-to-lack-of-quorum/">abruptly adjourned</a> on Thursday – for an unusual second time – due to a lack of a quorum.</p>
<p>Although this bill normally would not have caught global attention, the government’s active push for new criminal penalties shortly after the <a href="http://www.reuters.com/article/us-hongkong-china-occupy-idUSKCN0RS04O20150928">first anniversary</a> of massive citywide pro-democracy protests has raised free speech and civil liberties concerns. These concerns were heightened when a bookseller of banned Chinese books <a href="http://www.cnn.com/2016/01/04/asia/hong-kong-china-missing-booksellers/">mysteriously disappeared</a> two days before the New Year.</p>
<p>Hong Kong’s controversial copyright bill also presents <a href="http://variety.com/2016/digital/asia/hong-kong-bill-of-rights-opinion-1201674105/">policy challenges</a> for the U.S. government. Although this former British colony became part of China in 1997, its practice of “one country, two systems” has made it strategically important. How this special administrative region protects freedom and democracy – and, for that matter, intellectual property – will inevitably have serious ramifications on the mainland.</p>
<p>To some extent, the controversy has posed an unexpected test for U.S. presidential candidates. Should they support copyright reform abroad that will help protect American music, movies, TV programs and computer software? Or should they stand alongside the protesters, many of whom were among those demanding democratic reforms a year ago?</p>
<h2>Two strange bedfellows</h2>
<p>When free speech and copyright protection get together, they make strange bedfellows. People tend to assume that copyright protection is in harmony with free speech. The U.S. Supreme Court even <a href="https://www.law.cornell.edu/copyright/cases/471_US_539.htm">declared</a> that copyright is intended to be “the engine of free expression.”</p>
<p>Yet, intent is not the same as reality. Because copyright laws rapidly expanded in the past two decades, they now cover many online activities, including political and quasi-political communication. Whether free speech and the democratic discourse will remain protected will depend on how copyright laws are being enforced.</p>
<p>Indeed, the fair enforcement of these laws is at the <a href="http://www.latimes.com/world/asia/la-fg-hong-kong-internet-law-20151217-story.html">heart</a> of the current protests in Hong Kong. Local netizens are protesting not because they want to support large-scale online copyright piracy. Rather, they genuinely worry that many of their communicative and expressive activities will be caught in the net, attracting criminal prosecutions, civil lawsuits and selective enforcement.</p>
<h2>A controversial bill</h2>
<p>The proponents of the copyright bill claim that Hong Kong needs stronger protection to target illegal streaming of movies and TV programs. Yet, they have a <a href="http://variety.com/2015/digital/asia/hong-kong-pushed-back-copyright-debate-1201664724/">tough time</a> explaining why the bill was drafted so broadly to cover all forms of electronic communication. They also fail to alleviate the netizens’ concerns about unnecessary criminal penalties and potential government abuse.</p>
<p>Although the bill includes fair dealing exceptions for parody, satire, caricature, pastiche, quotation and commenting on current events, these exceptions are narrow and laden with conditions. All of them also require prosecutors and courts to do case-by-case balancing.</p>
<p>Considering the strong distrust many Hong Kong people have of their government, it is not difficult to see why they fear that the new law will become just another secret weapon to silence dissent. Their fears are also understandable following the government’s active – and, in their view, selective – prosecution of peaceful protesters of the “<a href="http://edition.cnn.com/2014/09/29/world/asia/china-hong-kong-protests/">Occupy Movement</a>.”</p>
<h2>U.S.-China policy</h2>
<p>Thus far, the controversy surrounding Hong Kong’s copyright bill has presented an unwanted <a href="http://variety.com/2016/digital/asia/hong-kong-bill-of-rights-opinion-1201674105/">policy dilemma</a> for the U.S. government.</p>
<p>On the one hand, stronger online copyright protection in Hong Kong may pave the way for similar reforms in China. Such reforms are important because the Internet has become a crucial entry point for American media products to enter the Chinese market – due largely to censorship over traditional channels, such as cinemas and DVDs. </p>
<p>On the other hand, freedom and democracy are of paramount importance to Americans. Many see freedom as a founding principle of the U.S., and China as the antithesis of the free world. Thus, the more freedom and democracy Hong Kong has, the more likely the region’s reforms are to percolate into other parts of China.</p>
<p>The dilemma between these two very different policy goals was made salient when the local U.S. consulate and the American Chamber of Commerce were <a href="http://www.scmp.com/news/hong-kong/law-crime/article/1892462/us-consulate-urges-hong-kong-update-its-copyright-law">caught</a> reaching out to pro-Beijing legislators to push for the controversial copyright bill. Not only were the local mass media perplexed by this unusual alliance, pro-democracy legislators also felt betrayed.</p>
<h2>The way forward</h2>
<p>Given this rather complex and delicate situation, how can the U.S. government promote American copyright interests without dampening the local people’s democratic aspirations?</p>
<p>The easiest way out is, of course, to support a broad, open-ended exception, similar to the U.S. fair use doctrine. Such an exception is already included in a proposal advanced by pan-Democrat legislators in Hong Kong.</p>
<p>As of this writing, both the Hong Kong government and local copyright industries have vehemently <a href="http://www.chinadaily.com.cn/hkedition/2015-12/18/content_22740049.htm">opposed</a> this proposal. Yet, the U.S. government has refrained from expressing support, notwithstanding the proposal’s American origin and strong pro-democracy appeal.</p>
<p>An alternative solution is to support the introduction of an <a href="http://www.chinadailyasia.com/hknews/2015-12/19/content_15361047.html">exception</a> that will prohibit civil and criminal actions against individual Internet users for noncommercial copyright infringement.</p>
<p>This exception is similar to existing U.S. copyright law, which <a href="https://www.law.cornell.edu/uscode/text/17/1008">prohibits</a> infringement actions involving noncommercial audio recordings. An <a href="http://laws-lois.justice.gc.ca/eng/acts/c-42/page-20.html#h-27">exception</a> for the creation and distribution of user-generated content can also be found in the new Canadian copyright act, which further <a href="http://laws-lois.justice.gc.ca/eng/acts/C-42/page-41.html?texthighlight=38.1#s-38.1">caps</a> the damage awards for noncommercial infringement.</p>
<h2>A collision course</h2>
<p>When copyright protection collides with freedom and democracy, there is no easy way out. Yet, it is both naïve and irresponsible to assume that the same copyright laws can be enacted anywhere in the world without adjustment regardless of local political conditions.</p>
<p>The Occupy Movement awakened many Hong Kong people more than a year ago. It is high time the region developed a robust, critical and wide-open public debate. As much as the U.S. government needs to enhance intellectual property protection abroad, it should do so without sacrificing democratic advancement.</p><img src="https://counter.theconversation.com/content/52566/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Peter K Yu has advanced proposals to amend the copyright bill on behalf of the press and internet user communities.</span></em></p>Will they stand with the protestors worried about an erosion of freedoms or with the companies eager to protect their intellectual property?Peter K. Yu, Professor of Law and Co-Director of the Center for Law and Intellectual Property, Texas A&M UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/526652016-01-06T11:06:37Z2016-01-06T11:06:37ZHow 3D printing threatens our patent system<figure><img src="https://images.theconversation.com/files/107308/original/image-20160105-29000-s7kwnk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Stop printing all over my patent.</span> <span class="attribution"><a class="source" href="https://www.flickr.com/photos/edans/7187593954">Enrique Dans/flickr</a>, <a class="license" href="http://creativecommons.org/licenses/by/4.0/">CC BY</a></span></figcaption></figure><p>Remember Napster or Grokster? Both services allowed users to share computer files – usually digital music – that infringed the copyrights for those songs.</p>
<p>Now imagine that, instead of music, you could download a physical object. Sounds like something from a sci-fi movie – push a button and there’s the item! But that scenario is already becoming a reality. With a 3D printer, someone can download a computer file, called a computer-aided design (CAD) file, that instructs the printer to make a physical, three-dimensional object. </p>
<p>Because CAD files are digital, they can be shared across the internet on file-sharing services, just like movies and music. Just as digital media challenged the copyright system with rampant copyright infringement, the patent system likely will encounter widespread infringement of patented inventions through 3D printing. The problem is, however, that the patent system is even more ill-equipped to deal with this situation than copyright law was, posing a challenge to a key component of our innovation system. </p>
<h2>The factory at your fingertips</h2>
<p>Technically called “additive manufacturing,” 3D printing from a CAD file allows someone to “print” physical items at home. The printer follows a file’s instructions to generate a physical object. The printer head releases tiny squirts of material that, layer by layer, build up into the item. 3D printers can create incredibly complex objects, such as <a href="http://ngm.nationalgeographic.com/2014/12/3d-printer/smith-text">rocket engine parts</a>, <a href="http://www.nature.com/nbt/journal/v32/n8/full/nbt.2958.html">human tissue</a>, a <a href="http://ngm.nationalgeographic.com/2014/12/3d-printer/smith-text">bionic ear</a> and even a <a href="http://www.wired.com/2015/06/feds-restrict-3d-printed-gun-files">functional gun</a>. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/107315/original/image-20160105-28971-1ccn25l.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/107315/original/image-20160105-28971-1ccn25l.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/107315/original/image-20160105-28971-1ccn25l.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=399&fit=crop&dpr=1 600w, https://images.theconversation.com/files/107315/original/image-20160105-28971-1ccn25l.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=399&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/107315/original/image-20160105-28971-1ccn25l.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=399&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/107315/original/image-20160105-28971-1ccn25l.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=501&fit=crop&dpr=1 754w, https://images.theconversation.com/files/107315/original/image-20160105-28971-1ccn25l.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=501&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/107315/original/image-20160105-28971-1ccn25l.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=501&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Laser scan an object into the computer and you can then print out a new 3D replica.</span>
<span class="attribution"><a class="source" href="https://www.flickr.com/photos/creative_tools/4530599701">Creative Tools</a>, <a class="license" href="http://creativecommons.org/licenses/by/4.0/">CC BY</a></span>
</figcaption>
</figure>
<p>The CAD files <a href="http://3dprinting.com/what-is-3d-printing/#howitworks">can be created</a> by scanning in an object or by virtually designing an object on the computer. Once you have what are essentially the blueprints, the object is then just a press of a button away. Of course, if that object is covered by a patent, then pushing that button results in patent infringement. </p>
<h2>Potentially bypassing patent protection</h2>
<p>Patents are actual documents issued by the federal government. They’re awarded for inventions that are <a href="https://www.law.cornell.edu/wex/patent">nontrivial advances in the state of the art</a>. A patent allows the owner to prevent others from <a href="http://www.uspto.gov/patents-getting-started/general-information-concerning-patents#heading-2">making, using, selling or importing the invention</a>. These exclusive rights help keep competitors out of the market, allowing the patent owner to recover R&D costs. The owner also can use the patent to support efforts to commercialize the invention.</p>
<p>If people can evade the patent, however, then its value is reduced, undermining these important incentives. 3D printing presents this potential. It enables someone to “print” something that infringes a patent. Once someone prints the patented invention, they have “made” it, which violates the patent owner’s rights. </p>
<p>Each printed copy of an invention is a lost potential sale to the patent holder. But, to sue for infringement, the patent owner would need to be aware that someone is using a 3D printer to make the patented invention. And that’s a very tall order since these printers are widely dispersed across households and businesses. </p>
<p>Alternatively, patent owners could go after the people facilitating the infringement. The Patent Act permits a patent holder to sue parties <a href="https://www.law.cornell.edu/uscode/text/35/271">who induce others to infringe</a>. Potential inducers of patent infringement here could be the sellers of the 3D printers, someone providing CAD files of the patented device, or websites that sell or share various CAD files that instruct the 3D printer to make the patented invention.</p>
<p>Copyright law similarly prohibits inducement of infringement. Grokster did not make the infringing copies of the music itself, but it certainly helped other people make infringing copies. The Supreme Court held that Grokster likely induced copyright infringement, and <a href="http://www.nytimes.com/2005/11/08/technology/grokster-calls-it-quits-on-sharing-music-files.html?_r=0">Grokster shut down</a>. The same idea could apply in the patent context. </p>
<p>But there is a huge problem with this approach: inducement of patent infringement requires actual knowledge of the relevant patent. For music, everyone knows the songs are copyrighted. Not everyone is aware that a particular device is covered by a patent. There are hundreds of thousands of patents in existence. It’s highly unlikely that potential inducers would have actual knowledge of every patent that could be infringed by use of a 3D printer. </p>
<p>For example, suppose a dentist develops a brilliant new form of plastic braces, and she patents it. Independently, another dentist with some computer savvy comes up with the same idea via a CAD file. He shares the file with his dentist friends with 3D printers, who then all begin printing the plastic braces. The dentist’s friends start sharing the file with their friends, or someone places it on a file-sharing network. And so on. Anyone printing the braces is technically an infringer, but how can the patent owner find them all? And the dentist sharing his CAD file would have to be aware of the patent to be liable as an inducer, which may be unlikely.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/107316/original/image-20160105-28971-192yjt2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/107316/original/image-20160105-28971-192yjt2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/107316/original/image-20160105-28971-192yjt2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=417&fit=crop&dpr=1 600w, https://images.theconversation.com/files/107316/original/image-20160105-28971-192yjt2.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=417&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/107316/original/image-20160105-28971-192yjt2.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=417&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/107316/original/image-20160105-28971-192yjt2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=524&fit=crop&dpr=1 754w, https://images.theconversation.com/files/107316/original/image-20160105-28971-192yjt2.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=524&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/107316/original/image-20160105-28971-192yjt2.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=524&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Does the infringement lie with the CAD files themselves?</span>
<span class="attribution"><a class="source" href="https://www.flickr.com/photos/creative_tools/13925075703">Creative Tools</a>, <a class="license" href="http://creativecommons.org/licenses/by/4.0/">CC BY</a></span>
</figcaption>
</figure>
<h2>Should the CAD files alone trigger infringement?</h2>
<p>Will 3D printing undermine the innovation incentives the patent system is designed to provide? Potentially, but <a href="http://law.campbell.edu/page.cfm?id=270&">Professor Lucas Osborn</a> of Campbell University School of Law and I have argued that courts can combat this problem by focusing on the CAD files, rather than the printed object.</p>
<p>Copyright provides a helpful contrast. Digital files themselves infringe. They are copies of the work. Not so in patent law. To infringe, one has to make a tangible version of the invention. But, if the infringing object is merely the press of a button away for someone with the CAD file and a 3D printer, should the CAD files themselves be viewed as <a href="http://dx.doi.org/10.2139/ssrn.2483550">digital patent infringement</a>, similar to copyright law? </p>
<p>We argue that if someone sells a CAD file that prints a patented item, that should be considered infringing. The CAD file has value because of the patented invention, so the seller is appropriating the economic value of the invention. </p>
<p>But what if someone is not selling the CAD file? Instead, they just possess it. Should that be infringement, too? We think not. The patent system encourages others to design around existing patents, which is often done in a virtual space. If the CAD file itself would be viewed as infringement, then the system could lose such beneficial improvement efforts. </p>
<p>It is unclear if courts or Congress will act to address these issues. What is inevitable, however, is that 3D printing will prove challenging to our patent system. There is a great irony here. One of the greatest innovations of our time may ultimately undermine a key engine of innovation, the patent system.</p><img src="https://counter.theconversation.com/content/52665/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Timothy Holbrook does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Copyright law had to figure out how to deal with digital media. Now 3D printers – and their capacity for infringement – are poised to challenge the patent system in a similar way.Timothy Holbrook, Associate Dean of Faculty, Professor of Law, Emory UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/504842015-11-12T11:16:42Z2015-11-12T11:16:42ZNo, the EU is not going to make hyperlinks illegal<figure><img src="https://images.theconversation.com/files/101691/original/image-20151112-9388-u1xs8v.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Any change that affects the web, affect people.</span> <span class="attribution"><span class="source">Arthimedes/shutterstock.com</span></span></figcaption></figure><p>You may have read that the European Commission intends to <a href="http://www.computing.co.uk/ctg/news/2433868/eu-considers-outlawing-web-links-unless-you-check-them-with-your-lawyers-first">prevent hyperlinks to copyrighted material</a>. The good news is that this isn’t true, but the bad news is that there is a real proposal to change copyright law that could change how we use hyperlinks – the bedrock of the world wide web.</p>
<p>How does the humble hyperlink fit into copyright law? Back in 1996 the World Intellectual Property Organisation <a href="http://www.wipo.int/wipolex/en/treaties/text.jsp?file_id=295166">approved a treaty</a> designed to bring copyright law in line with the latest technological developments such as the internet. This included a newly devised <a href="http://www.ifpi.org/content/library/wipo-treaties-making-available-right.pdf">right of communication to the public</a>, granting copyright owners the right to decide the time and manner in which they made their content available to the public. The idea was to allow rights holders to stop others from making infringing copies of their works available online.</p>
<p>In the years since, courts around the world have interpreted this right as a means to stop online copyright infringement, as it was intended. But some have begun to interpret the right too broadly, arguing that any hyperlink to copyrighted material – not just copies of the material – posted by someone other than the creator is a “communication to the public” and so could be considered breach of copyright.</p>
<p>This doesn’t just refer to creative works like films, music or literature. Practically everything is someone’s copyright unless otherwise excluded, which means that under the strictest interpretation, linking to any website containing any text or imagery would be a copyright infringement.</p>
<p>Some creators have gone to court making the case for this interpretation, but thankfully the courts have tended to take a much narrower view – recognising quite rightly that any restriction on hyperlinking would seriously undermine how the world wide web works. For example, in the landmark case of <a href="http://curia.europa.eu/juris/document/document.jsf?text=&docid=147847&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=58394">Svensson v Retriever Sverige</a>, the Court of Justice of the European Union decided that if the content had been made available to the public already, then providing a web link even without the permission of the author could not amount to copyright infringement. Other cases have helped to clarify this reading, for example <a href="http://www.technollama.co.uk/european-court-decides-about-linking-to-infringing-materials-or-does-it">C More</a> and <a href="http://curia.europa.eu/juris/liste.jsf?num=C-348/13">BestWater</a>.</p>
<h2>Repackaging content</h2>
<p>However, following the leak of a European Commission <a href="https://drive.google.com/file/d/0B6d07lh0nNGNaXFzUFBPaE0tY0E/view">draft proposal</a>, some have <a href="https://juliareda.eu/2015/11/ancillary-copyright-2-0-the-european-commission-is-preparing-a-frontal-attack-on-the-hyperlink/">raised the alarm</a> that things are about to change for the worst.</p>
<p>According to the leaked draft, copyright holders are concerned about their content being monetised by others, without licensing, through content aggregation. This is where a rights holder or creator releases their own content online, which is then aggregated by a third party, re-packaged and re-sold. </p>
<p>Under the existing interpretation of the right of communication to the public, if a work has been made available online, linking to it does not expose it to new audiences, so the right remains intact and linking is not an infringement. But the commission proposes to overhaul these rules in order to harmonise them across the EU now that some member states have tried to solve this issue on their own.</p>
<p>For example Spain introduced a disastrous “<a href="https://www.techdirt.com/articles/20150725/14510131761/study-spains-google-tax-news-shows-how-much-damage-it-has-done.shtml">Google Tax</a>” law, which forced news aggregators such as Google News to pay royalties if they used content from Spanish publishers. This led Google to simply <a href="http://www.theguardian.com/world/2014/dec/16/google-news-spain-publishing-fees-internet">stop using Spanish media</a>, meaning publishers were hit by decreased readership and advertising revenue. News media in Germany also pressed for a change of law to prevent this, which <a href="http://www.dw.com/en/german-publishers-vs-google/a-18030444">similarly backfired</a>.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/101693/original/image-20151112-9379-4yec17.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/101693/original/image-20151112-9379-4yec17.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=376&fit=crop&dpr=1 600w, https://images.theconversation.com/files/101693/original/image-20151112-9379-4yec17.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=376&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/101693/original/image-20151112-9379-4yec17.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=376&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/101693/original/image-20151112-9379-4yec17.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=473&fit=crop&dpr=1 754w, https://images.theconversation.com/files/101693/original/image-20151112-9379-4yec17.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=473&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/101693/original/image-20151112-9379-4yec17.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=473&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Spanish media hit by ‘Google Tax’ law.</span>
<span class="attribution"><span class="source">Google.com</span></span>
</figcaption>
</figure>
<h2>The web must be protected</h2>
<p>So I’m happy to report that hyperlinking without permission is not about to be made illegal, and many reports that are likely to surface in the following weeks are exaggerated. But there is still place for concern.</p>
<p>Judging by the leaked draft, the commission seems intent on overhauling the right of communication to the public in a way that could still affect how the web works by making it more difficult to aggregate content automatically without permission. This would affect commercial sites that rely on bringing together data from various sources and re-packaging them for a different audiences. This of course would affect sites like Google News, but there are many other sites that aggregate data in this way, for example companies that specialise in providing targeted market intelligence to tailored audiences. Any sort of commercial scale content management would become far more difficult to operate.</p>
<p>In my view the system is not currently broken, and there is little justification to change the law and bring about a more strict interpretation of the right. On the contrary, evidence from places such as Spain indicates that it could have considerably damaging effects on small and medium-sized publishers. The Google Tax in Spain reportedly <a href="http://arstechnica.co.uk/tech-policy/2015/07/new-study-shows-spains-google-tax-has-been-a-disaster-for-publishers/">costs Spanish publishers €10m a year</a> as a result of income lost through fewer visitors.</p>
<p>The worst-case scenario would be for the wrong approach adopted in Spain and Germany to become the blueprint applied to the rest of the EU under the pretence of harmonisation. Perhaps the commission should turn the Court of Justice interpretation in the landmark Svensson case into law and settle the matter once and for all, instead of pandering to copyright holders when they turn up with begging bowls demanding a change in the law without any evidence change is needed.</p><img src="https://counter.theconversation.com/content/50484/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Andres Guadamuz is affiliated with Creative Commons and the Open Rights Group. He has received funding from the Arts and Humanities Research Council and the World Intellectual Property Organization. </span></em></p>A treaty that allowed copyright owners to decide how and when their content was made available to the public has been interpreted too broadly by some.Andres Guadamuz, Senior Lecturer in Intellectual Property Law, University of SussexLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/493632015-10-26T03:20:10Z2015-10-26T03:20:10ZHow to protect authors after Google Books wins its ‘fair use’ case, again<figure><img src="https://images.theconversation.com/files/99589/original/image-20151026-18443-w4529k.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">How to deal with copyright when books are digitised.</span> <span class="attribution"><a class="source" href="https://www.flickr.com/photos/danielygo/5393995893/">Flickr/Daniel Go</a>, <a class="license" href="http://creativecommons.org/licenses/by-nc/4.0/">CC BY-NC</a></span></figcaption></figure><p>Google’s efforts to scan millions of books for an online library have passed another legal hurdle with the United States appeal court <a href="http://www.ca2.uscourts.gov/decisions/isysquery/7cafee30-7143-4e7b-b3b1-132f5bc66754/2/doc/13-4829_opn.pdf">agreeing</a> earlier this month that the search-giant’s <a href="https://books.google.com/">Google Books</a> project does not violate copyright law.</p>
<p>The appeal judges’ ruling supports an <a href="https://theconversation.com/google-books-wins-fair-use-but-australian-copyright-lags-20351">earlier district court ruling</a> two years ago. The case was brought by the Authors Guild, which argued that Google’s initiative constituted copyright infringement and could deprive authors of revenue.</p>
<p>But Google has successfully argued that its efforts could actually boost sales by making the text of books searchable, making it easier for people to find published works. </p>
<p>This latest outcome came without much surprise in the US, and the ruling is consistent with the earlier court rulings on fair use. The Authors Guild <a href="https://www.authorsguild.org/industry-advocacy/2nd-circuit-leaves-authors-high-and-dry/">plans to appeal</a> the case before the US Supreme Court but it is unlikely that it would succeed.</p>
<h2>Google Books and Australia</h2>
<p>The Google Books decision is based on a so called “<a href="http://www.copyright.gov/title17/92chap1.html#107">fair use</a>” doctrine which means that everyone can use copyrighted works free as long as the use falls under a particular definition of “fair”, including for “criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research”. But such broad and flexible doctrine does not exist in Australia or in most other countries, including Europe. </p>
<p>Instead, Australian copyright law contains narrower and more specific “<a href="http://www.alrc.gov.au/publications/7-fair-dealing/current-law">fair dealing</a>” exceptions as well as a few even more narrowly defined specific copyright exceptions.</p>
<p>It is unlikely that the Google Books project would fall under any of these exceptions. This means that if Google is sued in Australia for the same Google Books project, it is likely to lose the battle. Due to much stricter European copyright laws, a few years ago Google lost a case on <a href="http://www.cnet.com/news/google-loses-french-copyright-case/">Google Books in France</a>. </p>
<p>On the other hand, Australian laws are more flexible than French ones and Australian courts may be as well able to find in favour Google. In short: the legal situation of Google Book still remains uncertain in Australia.</p>
<h2>How Google Books works</h2>
<p>It is worth clarifying here that not everything that can be found on Google Books website was digitised and made accessible by Google for free and without the permission from the copyright holders. </p>
<p>If you can access chapters from a book, it means that Google has got permission from the publisher of the book to do so (and maybe agreed to remunerate the publisher – hence the author(s) – for this too). </p>
<p>It is only when Google does not have an agreement with the publisher, it takes a risk to digitise the book but then only show snippets of the text. This can be a few lines or a short paragraph where the search terms can be seen.</p>
<p>The US appeal court’s decision on Google Books confirmed that the use of snippets (but not chapters or full books) is fair use.</p>
<p>Google Books is an innovative and useful service but the question is whether Google should pay authors and publishers for its use of their work. </p>
<p>The Australian Law Reform Commission (ALRC) <a href="http://www.gizmodo.com.au/2014/02/australia-should-add-fair-use-to-copyright-laws-says-law-reform-commission/">proposed</a> last year that Australia follow the US and introduces a fair use doctrine.</p>
<p>Accepting fair use in Australia would mean that Google is free to digitise all Australian books for free, put the text in its search engine and allow users to view at least snippets from the books. </p>
<p>But Australian <a href="http://www.alrc.gov.au/publications/4-case-fair-use-australia/arguments-against-fair-use-australia">authors and publishers opposed strongly</a>. </p>
<p>Australian authors argue that fair use would further worsen their financial situation that is <a href="http://www.smh.com.au/entertainment/books/australian-authors-earn-only-12900-from-their-writing-a-new-report-says-20151006-gk2ft4.html">already rather miserable</a>. As a result, government has not shown any signs in taking up this proposal. </p>
<p>It is true that fair use doctrine has its own risks. For many it looks open, flexible and seems to welcome innovative services such as Google Books. On the other hand, it creates even more uncertainty for those who want to rely on it.</p>
<p>What use is fair? Each particular case needs to be checked in court, but Australian courts do not have years of experience in applying fair use, as US courts do. </p>
<h2>Alternatives to fair use</h2>
<p>If fair use is not a perfect solution, what could be a compromise? This is a question with no easy answer.</p>
<p>Instead of fair use, European academics <a href="http://www.copyrightcode.eu/index.php?websiteid=3">suggest</a> reviewing the existing copyright exceptions and adding one broader exception that could apply in “emergency” situations such as Google Books case. </p>
<p>The ALRC also suggested, in its <a href="http://www.alrc.gov.au/publications/copyright-report-122">report last year</a>, an alternative to fair use; the consolidation and expansion of existing fair dealing exceptions. Maybe this could be a starting point for a discussion?</p>
<p>One of the problems Google Books faced was the difficulty in finding all the copyright holders of a work and signing a contract with each of them. The Google Book Settlement was meant to ensure that all copyright holders whose books were used in Google Books were remunerated. </p>
<p>This was proposed by Google but eventually <a href="http://digitalpublishingaustralia.org.au/2012/07/20/what-ever-happened-to-the-google-book-settlement/">rejected by the US court</a>. </p>
<p>Wouldn’t it make sense to create licensing solutions that would make it easier for such projects as Google Books to get licenses and pay fees for millions of authors and publishers? Authors would then get paid and the global service would stay running for all to use.</p><img src="https://counter.theconversation.com/content/49363/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Rita Matulionyte does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Google has won again in its efforts to create a searchable digital library of books. But many author groups still believe the project infringes their copyright.Rita Matulionyte, Lecturer in Law, University of NewcastleLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/488482015-10-21T03:27:53Z2015-10-21T03:27:53ZThe pitfalls of enforcing copyright protection in the digital age<figure><img src="https://images.theconversation.com/files/99000/original/image-20151020-32258-spl77c.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Amazon caused a stir when it unilaterally removed George Orwell's classic novel 1984 from Kindle e-readers in 2009. </span> <span class="attribution"><span class="source">Shutterstock</span></span></figcaption></figure><p>In mid-July 2009, in a <a href="http://www.nytimes.com/2009/07/18/technology/companies/18amazon.html">twist of irony</a>, online retailer <a href="http://www.reuters.com/finance/stocks/companyProfile?symbol=AMZN.O">Amazon</a> unilaterally removed digital copies of George Orwell’s classic novel 1984 from a number of Kindle e-readers. Customers were outraged.</p>
<p>If it wasn’t for the fact that it really happened, it would surely be a fitting allegory for the pervasive influence of modern technology and how easily it allows for tampering in our lives.</p>
<p>This incident is a cautionary tale against the use of unfettered and, at times, unwarranted copyright protection. It is important in South Africa given the proposed amendments to the Copyright Act to, among other goals, beef up copyright protection in the digital age.</p>
<p>In principle it is justifiable to protect and grant a holder of copyright the exclusive right to profit from the fruit of their original labour. This is the basis of intellectual property rights.</p>
<p>But the drastic steps taken by Amazon against innocent purchasers of Orwell’s novel are likely not justifiable. The incident occurred because the company that added the digital copies of the book to the Kindle store did not have the rights to the book. So, to ensure that Amazon wasn’t a party to the infringement of the copyright to Orwell’s novel, the company stopped selling the e-book. </p>
<p>Amazon was able to accomplish this because it incorporated technology into its e-readers that allowed it to privately enforce its user agreements and the copyright licenses of others. This technology is commonly referred to as Digital Rights Management (DRM). </p>
<h2>What is digital rights management?</h2>
<p>The evolution of DRM technology has played a significant role in the enforcement of intellectual property rights in the digital age. It refers to a mixture of technical and legal protection <a href="http://ejlt.org/article/view/22/50">measures</a>. It is commonly applied to digital copyright, which is designed to control and regulate digital content.</p>
<p>Traditionally, DRM technology was simply used to regulate the use of content subject to intellectual property rights protection. The newer and more problematic forms now seek to control access to the content.</p>
<p>The proliferation of DRM technology is largely due to <a href="http://www.wipo.int/wipolex/en/treaties/text.jsp?file_id=295166#P87_12240">Article 11</a> of the <a href="http://www.wipo.int">WIPO</a> Copyright Treaty. This provides for countries to develop protection for and remedies related to the circumvention of so-called technical protection measures used by rights-holders in connection to the exercise of their copyright. Among others, this forms the basis for the <a href="http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32001L0029:EN:HTML">European Information Society Directive</a> and the somewhat infamous <a href="https://www.congress.gov/bill/105th-congress/house-bill/2281">Digital Millennium Copyright Act</a> in the US. </p>
<p>South Africa has signed the copyright treaty but it has not yet been adopted into law. The draft <a href="http://www.gov.za/documents/copyright-amendment-bill-comments-invited-27-jul-2015-0000">Copyright Amendment Bill</a> seeks to do so, although some of the proposed aspects are <a href="http://blogs.sun.ac.za/iplaw/2015/08/24/unscrambling-the-curates-egg-full-review-of-the-copyright-amendment-bill/">problematic</a>.</p>
<p>The DRM is getting more complex and draconian, given the ease with which copyright may be infringed over the internet and the multiplier effect this may have with regard to a loss of royalties or other income. Some of its staunchest critics, such as the <a href="https://www.eff.org/node/56084">Electronic Frontier Foundation</a>, point out that DRM technology exceeds the scope of mere intellectual property protection. They allege it crosses a line where it clashes with established principles in the field of intellectual property law.</p>
<h2>Fair use and exceptions</h2>
<p>From an intellectual property law point of view, DRM has been criticised as potentially undermining traditional exceptions with regard to intellectual property, such as the principle of <a href="http://fairuse.stanford.edu/overview/fair-use/what-is-fair-use/">fair use</a> and the <a href="https://freedom-to-tinker.com/blog/abridy/digital-death-copyrights-first-sale-doctrine/">doctrine of first sale</a>. </p>
<p>Fair use, which is not currently recognised in South Africa but which the draft Copyright Amendment Act seeks to introduce, aims to balance the rights of copyright holders vis-à-vis the rights of the legitimate users of such copyright. In terms of the <a href="http://www.wipo.int/treaties/en/text.jsp?file_id=283698">Berne Convention</a>, copyright is fairly used if:</p>
<ol>
<li><p>It is done for a specific, recognised purpose;</p></li>
<li><p>It does not conflict with the copyright holder’s normal rights; and</p></li>
<li><p>It does not unreasonably prejudice the legitimate interests of the copyright holder.</p></li>
</ol>
<figure class="align-right ">
<img alt="" src="https://images.theconversation.com/files/98999/original/image-20151020-32235-12gt607.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/98999/original/image-20151020-32235-12gt607.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=450&fit=crop&dpr=1 600w, https://images.theconversation.com/files/98999/original/image-20151020-32235-12gt607.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=450&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/98999/original/image-20151020-32235-12gt607.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=450&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/98999/original/image-20151020-32235-12gt607.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=566&fit=crop&dpr=1 754w, https://images.theconversation.com/files/98999/original/image-20151020-32235-12gt607.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=566&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/98999/original/image-20151020-32235-12gt607.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=566&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Digital rights management technology is good, but can also be abused.</span>
<span class="attribution"><span class="source">Shutterstock</span></span>
</figcaption>
</figure>
<p>By controlling access and restricting use, DRM potentially prevents this. It has already led to situations where certain legitimate users’ access rights have been <a href="http://www.plannedobsolescence.net/fair-use/">rendered obsolete</a>. The opinion is slowly changing on whether this is acceptable. The European Court of Justice recently <a href="http://curia.europa.eu/juris/document/document.jsf?docid=124564&doclang=EN">ruled</a> that a copyright holder of software cannot oppose the resale of “used” licences, even in the case where the software was downloaded from the internet.</p>
<p>From a competition law point of view, it has been shown that DRM technology can be misused to try and exclude competitors, enforce distribution agreements, and engage in <a href="http://www.serci.org/2005/liebowitz.pdf">price discrimination</a> between different consumer and geographic markets. This is not only in relation to how retailers may deal with digital goods, but also to private consumers after the fact. </p>
<p>There have been <a href="http://www.arl.org/focus-areas/court-cases/2465-lexmark-v-static-control-component-and-chamberlain-group-inc-v-skylink-technologies-inc-#.VhY69PnzqUl">cases</a> where it was stated that in instances where technology is used to frustrate competition rather than protect intellectual property, this will not be allowed.</p>
<h2>The challenge for South Africa</h2>
<p>Currently the legal status of DRM in South Africa is unclear. Some have argued that protection for it is provided for through the cybercrime provisions of the <a href="http://www.saflii.org/za/legis/consol_act/ecata2002427/">Electronic Communications and Transactions Act</a>, which attempts to overcome security measures protecting data illegal.</p>
<p>But the same provisions outlaws interference with data. Given the provisions of the Consumer Protection Act and that these agreements are rarely read by users who have no choice but to agree to them, the solution may not be so <a href="http://www.speculumjuris.co.za/files/pdf/P_Koornhof_SJ_20122_1.pdf">simple</a>.</p>
<p>Most forms of DRM are lawful in South Africa. And the technology itself, while controversial, has a place in copyright enforcement. </p>
<p>But unfettered protection is not warranted, and the South African legislature should take care when implementing the proposed amendments.</p><img src="https://counter.theconversation.com/content/48848/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Pieter GJ Koornhof does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Enforcing copyright protection in the digital age has become complex. South Africa should tread carefully as it amends its copyright laws.Pieter GJ Koornhof, Lecturer in the Department of Mercantile and Labour Law, University of the Western CapeLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/403022015-04-19T20:07:02Z2015-04-19T20:07:02ZHow much will Australia’s Dallas Buyers Club pirates have to pay?<figure><img src="https://images.theconversation.com/files/78333/original/image-20150417-20770-cuggyk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Australians who illegally downloaded Dallas Buyers Club could soon be receiving letters asking for payment.</span> <span class="attribution"><span class="source">Anne Marie Fox/Focus Features</span></span></figcaption></figure><p>Nearly 5,000 Australians are expected to receive letters in the near future asking them some pointed questions about their online downloading habits, specifically relating to the film <a href="https://theconversation.com/it-is-not-clear-who-won-in-the-dallas-buyers-club-llc-court-case-and-was-it-moot-39833">Dallas Buyers Club</a>. </p>
<p>What might these letters contain? Will they make threatening advances in the hope for a large settlement, as has happened in the United States? Or will they take a softer line, seeking smaller sums? </p>
<p>We don’t yet know what the letters might contain, but by looking at recent events in digital piracy, and how various copyright holders have responded, we might pick up a few clues.</p>
<h2>Flashpoint</h2>
<p>The recent <a href="http://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2015/2015fca0317">legal battle</a> between Dallas Buyers Club LLC and multiple Australian ISPs – iiNet, Internode, Amnet Broadband, Dodo, Adam Internet and Wideband Networks, although excluding Telstra, Optus and TPG – has raised numerous questions. </p>
<p>How will this decision <a href="https://theconversation.com/from-convicts-to-pirates-australias-dubious-legacy-of-illegal-downloading-39912">impact Australian piracy levels</a>? What will be the repercussions for those who have allegedly illegally shared the film? And how could this impact changes to <a href="http://media.crikey.com.au/wp-content/uploads/2014/07/copyright.pdf">Australian copyright law</a> more broadly?</p>
<p>The decision made in regards to Dallas Buyers Club will see the ISPs provide the identities of 4,726 Australians to the film’s production company. The first respondent in the case, iiNet, has confirmed it <a href="http://www.smh.com.au/business/iinet-m2-group-wont-appeal-dallas-buyers-club-decision-20150415-1mkwkx.html">will not appeal</a>. </p>
<p>This was a case that iiNet has admitted it would have not won, but <a href="http://www.smh.com.au/business/iinet-m2-group-wont-appeal-dallas-buyers-club-decision-20150415-1mkwkx.html">noting</a> it “spent good money to make sure [Dallas Buyers Club LLC] weren’t allowed to use the information for what we considered purposes not in our customers’ interest”.</p>
<p>The legalities of downloading content without paying are <a href="http://www.smh.com.au/digital-life/digital-life-news/downloading-movies-and-tv-is-not-a-crime-20141209-11uyie.html">continually being debated</a>, even after the verdict was handed down. Arguably, this is just the starting point, with so many factors to be considered in conjunction with a <a href="https://theconversation.com/netflix-arrival-will-be-a-tipping-point-for-tv-in-australia-38386">changing Australian media lanscape</a> in 2015.</p>
<h2>Approaches abroad</h2>
<p>So how much should someone pay if they’re found guilty of illegally downloading a copyrighted movie?</p>
<p>Dallas Buyers Club LLC has already tried a variety of approaches to get pirates to pay in different countries. In the US it <a href="http://www.news.com.au/technology/online/what-to-do-if-you-receive-a-letter-from-dallas-buyers-club-llc/story-fnjwneld-1227295177465">sent letters</a> to those who allegedly downloaded the film attempting to glean around US$7,000 (A$9,000) from them. This technique is known as speculative invoicing, and is viewed by many to be a “<a href="http://www.sunshinecoastdaily.com.au/news/speculative-invoicing-downloads-bullying-tactic/2600827/">bullying tactic</a>”. </p>
<p>The use of speculative invoicing was a concern for iiNet during the Dallas Buyers Club case. Chief Regulatory Officer Steve Dalby <a href="http://www.smh.com.au/entertainment/movies/dallas-buyers-club-movie-makers-hunt-illegal-aussie-downloaders-20141023-11a9qq.html#ixzz3XNEdWIHn">stated late last year</a> that:</p>
<blockquote>
<p>[…] we have serious concerns about Dallas Buyers Club’s intentions. We are concerned that our customers will be unfairly targeted to settle any claims out of court using a practice called ‘speculative invoicing’.</p>
</blockquote>
<p>An Australian who moved to Colorado, has claimed that <a href="http://www.reddit.com/r/australia/comments/322ns8/i_was_sued_over_dallas_buyers_club/">he was sued</a> by the Dallas Buyers Club LLC, in 2013 while living in the US. In the letter sent directly from his ISP, he was informed that “he had been sued and subpoenaed by Dallas Buyers Club LLC”. He was requested to pay representation and settlement costs totalling well over US$5,000 (A$6,430). After numerous discussions it is claimed the case was settled out of court for US$500 (A$643).</p>
<p>Dallas Buyers Club LLC took a somewhat different tack in Singapore – a country with the highest rates of peer-to-peer infringement of English language TV shows per capita. The company recently <a href="http://www.todayonline.com/singapore/peer-sharing-affects-livelihoods-film-makers">sent letters</a> that “ask for a written offer of damages and costs within three days of receipt”. The letters were sent to 77 M1 subscribers, with further letters to be sent to Singtel and StarHub customers.</p>
<p>In New Zealand, the process for notification of internet piracy is a “<a href="http://media.crikey.com.au/wp-content/uploads/2014/07/copyright.pdf">graduated response scheme</a>”. The process requires the copyright holder to notify the ISP, who then forwards the information to the account holder. After the third notification the rights holder can seek compensation for up to NZ$15,000.</p>
<h2>What might Australians pay?</h2>
<p>So what could happen in Australia? Dallas Buyers Club LLC is targeting nearly <a href="http://www.todayonline.com/singapore/peer-sharing-affects-livelihoods-film-makers?page=1">five times</a> as many potential copyright violators here than in the US.</p>
<p>Michael Wickstrom, the Vice President of Royalties at Dallas Buyers Club‘s parent company, Voltage Pictures, <a href="http://www.gizmodo.com.au/2015/04/you-might-not-get-fined-for-downloading-dallas-buyers-club/">has said</a> that “we are working with our Australian attorneys to come up to an Australian solution to an Australian problem. What works in the US may not work […] in Australia. But we are developing a system that becomes a deterrent”. What that will be is yet to been seen.</p>
<p>The first point that needs to be made in regards to the Dallas Buyers Club case in Australia, is that the Federal Court will <a href="http://https://accan.org.au/news-items/hot-issues/1037-online-piracy-speculative-invoicing">review all letters</a> prior to them being sent. This will minimise the possibility of harsh speculative invoicing, which was one of iiNet’s reservations. </p>
<p>According to the reports and expert views, Dallas Buyers Club LLC will likely ask for lower amounts from Australians than in the US. Mark Vincent, an IP Lawyer, argues that what we are likely to see is “<a href="http://www.smh.com.au/digital-life/digital-life-news/internet-pirates-might-pay-only-20-compensation-each-to-dallas-buyers-club-20150411-1mgx2e.html">order damages</a>” for the cost of legally obtaining the film – which would be about A$20. </p>
<p>However, Tom Godfrey from <a href="https://www.choice.com.au">CHOICE</a> believes that what Dallas Buyers Club LLC and consumers see as a fair costs could vary considerably. In addition to the cost for obtaining the film, Dallas Buyers Club LLC may also <a href="http://www.smh.com.au/digital-life/digital-life-news/dallas-buyers-club-tells-downloaders-to-name-price-for-pirating-their-film-20150415-1mlapg.html">argue that</a> “it should include the costs of their application for preliminary discovery, and the costs associated with sending the letter”.</p>
<h2>Waiting game</h2>
<p>It will now be a waiting game for those Australians who may receive one of these letters from Dallas Buyers Club LLC. What is clear is the amount requested is likely to be far less than the US$5,000 requested in the US. </p>
<p>While there has also been <a href="http://www.todayonline.com/singapore/peer-sharing-affects-livelihoods-film-makers">confirmation</a> of replies and acceptance of offers in the more recent Singaporean case, the figures have not been disclosed. Therefore a comparison can not be applied.</p>
<p>This raises another issue when it comes to piracy. In the discussion that is likely to take place between rights holders and the government, one key stakeholder is not being included: the consumers.</p>
<p>Suing “mums and dads and students” should not be the path rights holders undertake. We have seen this year in a Australia a change in the access and cost of media content, specially film and television, thanks to new <a href="https://theconversation.com/netflix-arrival-will-be-a-tipping-point-for-tv-in-australia-38386">video-on-demand services</a>. </p>
<p>Once established, these new services will give a clear indication whether the <a href="https://theconversation.com/from-convicts-to-pirates-australias-dubious-legacy-of-illegal-downloading-39912">reasons given by Australians</a> for illegally downloading content, access and costs, were in fact correct.</p><img src="https://counter.theconversation.com/content/40302/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Marc C-Scott is a board member of C31 Melbourne (Community Television Station).</span></em></p>How much might Australians caught illegally downloading Dallas Buyers Club be charged for their indescretion?Marc C-Scott, Lecturer in Digital Media, Victoria UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/399302015-04-13T06:19:24Z2015-04-13T06:19:24ZIs downloading really stealing? The ethics of digital piracy<figure><img src="https://images.theconversation.com/files/77745/original/image-20150413-10562-1uqlr9r.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Piracy might be theft, but it's not the same as robbing someone of their material possessions.</span> <span class="attribution"><a class="source" href="https://www.flickr.com/photos/mrdos/3356126980/in/photolist-67z2Ch-5NJKUm-bGa8Qr-rak53-8BX85L-4YCuRm-9JY5Zu-C39xc-iwbZDq-6W3kBa-72VEQ2-bnQDUV-4W6FWp-6TrdZG-dmhHi-Lufdz-5veCU-6PZc3x-bEcfTC-7zKW7T-aqh5bn-68t5Z1-hqJuD-o7Zm6W-7jGXTa-388e2E-bnSn6U-6oy7eF-hZ2npV-5X8RMC-AJXSQ-AJXSH-aDqGh3-FffRN-5d6pBz-6TncYR-qjk9jU-9X9hFL-7R9q6C-qnPCPe-4vnuQ5-77VJTS-81SBkJ-eq8MT8-6TfUsx-2qjjPN-91prbd-4KGk9k-4KLkDb-4KGone">Josu/Flickr</a>, <a class="license" href="http://creativecommons.org/licenses/by/4.0/">CC BY</a></span></figcaption></figure><p>Many millions of people throughout the world will illegally download the fifth season of <a href="https://theconversation.com/explainer-game-of-thrones-the-story-so-far-24321">Game of Thrones</a>, released today by HBO. Legally speaking, what they will be doing is a violation of intellectual property rights, or “piracy”. But will they be doing anything morally <em>wrong</em>? </p>
<p>It might seem obvious that what they will do is wrong. After all, it is illegal. But there are many things that have been illegal that people don’t think are morally wrong. Same-sex relationships, divorce and many other practices that are now widely accepted as morally acceptable were once outlawed and criminally sanctioned.</p>
<p>Few people think they were wrong just before they were legalised. Rather, they tend to think the laws governing these behaviours were unjust. So appeal only to the illegality of downloading doesn’t settle whether it is okay, morally speaking. </p>
<h2>Opposing views</h2>
<p>Two rival camps dominate public discussion around the ethics of illegal downloading. On the one hand, there are what might be called “fundamentalist libertarians”. These think that all ideas and artistic creation should be <a href="http://www.wired.co.uk/news/archive/2012-02/13/peter-sunde-evolution">held in common and be freely accessible to all</a>. </p>
<p>In their view, intellectual property, in the form of copyright and patents, unfairly <a href="https://pirateparty.org.au/faq/">restricts access to ideas and expression</a>. They consider illegal downloading to be victimless crime, and do not think it imposes significant cost on anyone. In their view, the serious criminal sanctions that sometimes attach to illegal downloading are draconian and unjustified.</p>
<p>On the other hand, there are what might be called the “fundamentalist protectors”. This camp thinks that illegal downloading is equivalent to common theft. </p>
<p>This view is vividly expressed in the aggressive message that often precedes films in Australia: </p>
<blockquote>
<p>You wouldn’t steal a car, you wouldn’t steal a handbag, you wouldn’t steal a television, you wouldn’t steal a movie. Downloading pirated films is stealing. </p>
</blockquote>
<figure>
<iframe width="440" height="260" src="https://www.youtube.com/embed/HmZm8vNHBSU?wmode=transparent&start=0" frameborder="0" allowfullscreen=""></iframe>
</figure>
<p>According to fundamentalist protectors, owners of intellectual property deserve just as much protection and means for redress as those who have had their handbags or televisions stolen, including civil and criminal sanction against those who have violated their intellectual property. </p>
<p>For them, the massive penalties that are sometimes attached to illegal downloading are important because they send a clear message that this practice should not be tolerated. This seems to be the view of much of the <a href="http://www.abc.net.au/triplej/hack/stories/s4212674.htm">entertainment industry</a>, as well as public officials and legislatures in countries that produce and export a lot of intellectual property. </p>
<p>In a <a href="http://www.cnet.com/news/obama-to-aggressively-protect-intellectual-property/">recent speech</a>, for example, US President Barak Obama claimed:</p>
<blockquote>
<p>We’re going to aggressively protect our intellectual property […] Our single greatest asset is the innovation and the ingenuity and creativity of the American people […] It is essential to our prosperity. But it’s only a competitive advantage if our companies know that someone else can’t just steal that idea and duplicate it.</p>
</blockquote>
<h2>Excluding theft</h2>
<p>Despite their currency, both of these positions are overdrawn and seem at odds with moral common sense. The fundamentalist protector position is problematic because there are clear and morally relevant differences between stealing someone’s handbag and illegally downloading a television series. </p>
<p>In common theft, the owner of property is entirely deprived of its use, as well as their ability to share it and dispose of it as they choose. Common theft is zero-sum: when I steal your handbag, my gain really is your loss. </p>
<p>The same is not true when I download a digital file of your copyrighted property. In downloading your film, I have not excluded you from its use, or your ability to benefit from it. I have simply circumvented your ability to exclude me from its use. To draw an analogy, this seems more like trespassing on your land than taking your land away from you. </p>
<p>Criminal sanctions seem warranted in thefts where one person’s gain is very clearly another person’s loss. But things are not so clear when the relationship between gain and loss are more complex. </p>
<p>And of course there are ways that owners of intellectual property can gain, overall, from infringements of their rights. The more accessible their products become, the more people may want to consume them. This certainly seems to be the case with products like Game of Thrones, a fact <a href="http://theconversation.com/from-convicts-to-pirates-australias-dubious-legacy-of-illegal-downloading-39912">recognised by its producers</a>.</p>
<h2>Protecting public goods</h2>
<p>On the other hand, the fundamentalist libertarian position is problematic because it treats all intellectual property infringement as a victimless crime. For one thing, intellectual property rights are an important means by which people gain profit from the effort that they put into the production of creative works. </p>
<p>That they can profit in this way provides an important incentive – aside from the intrinsic value of the productive activity itself – for them to engage in socially useful productive activity. </p>
<p>This is evident in other fields, such as research and development of medical treatments: firms have little reason to invest the time and resources in developing vaccines and other <a href="http://en.wikipedia.org/wiki/Public_good">public goods</a> if they cannot benefit from their distribution. </p>
<p>Thus, not protecting the rights of the producers in some meaningful way is bad for everyone. Infringing intellectual property rights can also increase cost to those do pay for the good, in the form of higher prices. Those who pay for intellectual property are effectively subsidising its use by those who do not pay for it. In most cases this seems unfair.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/77734/original/image-20150413-10555-djv45w.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/77734/original/image-20150413-10555-djv45w.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/77734/original/image-20150413-10555-djv45w.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/77734/original/image-20150413-10555-djv45w.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/77734/original/image-20150413-10555-djv45w.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/77734/original/image-20150413-10555-djv45w.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/77734/original/image-20150413-10555-djv45w.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/77734/original/image-20150413-10555-djv45w.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Copyright holders are going to great lengths to discourage piracy.</span>
<span class="attribution"><span class="source">Descrier/Flickr</span>, <a class="license" href="http://creativecommons.org/licenses/by/4.0/">CC BY</a></span>
</figcaption>
</figure>
<h2>A different kind of theft</h2>
<p>The question of the morality of illegal downloading is so difficult because it takes place in an environment in which the penalties attached to this behaviour ordinarily seem to be overkill, but where there are pretty clear social costs to engaging in it. </p>
<p>What, then, should be done? For starters, it seems important to stop treating intellectual property infringement as common theft, and to develop different legal remedies for its protection. Various kinds of property are different, and warrant different forms of protection. This is hardly a novel idea.</p>
<p>In his fascinating book, <a href="http://www.amazon.com/Thirteen-Ways-Steal-Bicycle-Information/dp/0674047311">13 Ways to Steal a Bicycle: Theft Law in the Information Age</a>, the legal philosopher Stuart Green has pointed out that treating all infringement of property as theft subject to the same legal rubric is a relatively new development.</p>
<p>Prior to the 20th Century, theft law consisted of a sort of ad hoc collection of specific theft offences and specific kinds of property that were subject to theft. Different rules applied to different offences, and intangible forms of property, like intellectual property, were not included in theft law at all. We may need to <a href="http://www.carnegiecouncil.org/studio/multimedia/20120606/index.html#section-23499">return to rules</a> that are well suited to protecting different forms of property. </p>
<p>In the meantime, it seems incumbent on consumers to try to respect intellectual property unless doing so imposes unreasonable cost on them. Refraining from accessing patented essential medicines that are inaccessible due to price does seem unduly costly. Refraining from watching the latest season of Game of Thrones, the ardour of its fans notwithstanding, does not. </p>
<p>At the same time, we should also strongly resist massive penalties levied on downloaders when they are caught. The practice of “<a href="https://www.scribd.com/doc/230228190/Dbc-Settleltr-00384oh">speculative invoicing</a>” – whereby people are sent threatening letters that offer the opportunity to pay a sum to prevent legal action seeking vast sums – is seriously objectionable. Even if what the downloaders have done is wrong, it is much worse to over-punish them.</p><img src="https://counter.theconversation.com/content/39930/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Christian Barry receives funding from the Australian Research Council for the project The Ethical Responsibilities of Consumers</span></em></p>Downloading copyrighted material without permission is illegal, but is it morally equivalent to stealing a DVD?Christian Barry, Head of the School of Philosophy, Australian National UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/399122015-04-10T07:37:59Z2015-04-10T07:37:59ZFrom convicts to pirates: Australia’s dubious legacy of illegal downloading<figure><img src="https://images.theconversation.com/files/77610/original/image-20150410-2103-16a6jpx.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Game of Thrones has been the most pirated television show in history. Will season 5 be any different?</span> <span class="attribution"><span class="source">Helen Sloan/HBO</span></span></figcaption></figure><p>The fifth season of Game of Thrones is being <a href="http://www.smh.com.au/entertainment/tv-and-radio/game-of-thrones-to-be-broadcast-simultaneously-around-earth--which-means-11am-monday-aest-20150311-140jrr.html">released simultaneously across the globe</a>, which means Australians will get access from 11am (AEST) on Monday April 13. HBO has decided to not drip-feed the episodes across differing regions, a method more commonly used for television series.</p>
<p>One reason for the change is an attempt to curb the high piracy rate associated with earlier broadcasts of the popular television series, particularly in Australia.</p>
<p>But according to Game of Thrones director, <a href="http://torrentfreak.com/piracy-doesnt-hurt-game-of-thrones-director-says-130227/">David Petrarca</a>, piracy is not a bad thing and “may do more good than harm” by contributing to the buzz around the series. </p>
<p>During 2013, prior to the third season, <a href="http://www.smh.com.au/entertainment/tv-and-radio/downloads-dont-matter-20130226-2f36r.html#ixzz2LywE7AZ2">Petrarca said</a> that unauthorised downloads did not matter because shows such as Game of Thrones thrive on “cultural buzz” and benefit from the social commentary they generate.</p>
<p>The premiere of season 4 for Game of Thrones triggered a <a href="http://torrentfreak.com/game-of-thrones-premiere-triggers-piracy-craze-140407/">record rate</a> of “more than a million downloads in half a day”. Torrent Freak <a href="http://torrentfreak.com/game-of-thrones-premiere-triggers-piracy-craze-140407/">revealed</a> Australia as the leader (11.6%) in illegal sharing of the episodes, followed by the US (9.3%) and UK (5.8%). </p>
<p>Australian cities also led the top cities in illegally sharing the program. Melbourne ranked number one and Sydney third, with Brisbane (ninth) and Perth (tenth) rounding out the top ten. These are not titles of which Australians should be proud. </p>
<h2>Dubious record</h2>
<p>Game of Thrones is not the only television program with a legacy of piracy. The Breaking Bad finale in 2013 had <a href="http://www.smh.com.au/entertainment/tv-and-radio/house-of-cards-season-3-piracy-booms-in-countries-without-netflix-20150302-13sr7a.html">illegal downloads</a> of “more than half a million times within 12 hours”. </p>
<p>Top of the list again for pirating the finale was Australia, accounting for 18% of the illegal downloads, followed by the US (14.5%) and UK (9.3%).</p>
<p>But we are not always on top of the illegal download table. The recent release of House of Cards season 3 saw Australia at <a href="http://www.smh.com.au/entertainment/tv-and-radio/house-of-cards-season-3-piracy-booms-in-countries-without-netflix-20150302-13sr7a.html">fourth place</a>, behind China, the US and India. </p>
<p>What is important to note is that of the top ten countries listed, half – China, India, Australia, Poland and Greece – had no local Netflix service (although the Australian service launched weeks later). This lends support to the notion that a key problem is access, which needs to be resolved to help reduce piracy globally.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/77613/original/image-20150410-2092-dg1jxi.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/77613/original/image-20150410-2092-dg1jxi.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/77613/original/image-20150410-2092-dg1jxi.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=422&fit=crop&dpr=1 600w, https://images.theconversation.com/files/77613/original/image-20150410-2092-dg1jxi.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=422&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/77613/original/image-20150410-2092-dg1jxi.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=422&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/77613/original/image-20150410-2092-dg1jxi.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=531&fit=crop&dpr=1 754w, https://images.theconversation.com/files/77613/original/image-20150410-2092-dg1jxi.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=531&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/77613/original/image-20150410-2092-dg1jxi.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=531&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Breaking Bad is another television show that has been heavily downloaded by Australians.</span>
<span class="attribution"><span class="source">Ursula Coyote/AMC</span></span>
</figcaption>
</figure>
<h2>But are Australians the pirate leaders?</h2>
<p>The <a href="http://www.ipawareness.com.au">Intellectual Property Awareness Foundation</a> has commissioned studies in this area since 2009. Its <a href="http://www.ipawareness.com.au/LiteratureRetrieve.aspx?ID=120744">2010 report</a> showed that more than half of Australia’s population had participated in some form of piracy. The largest group was 18-24 year olds, with 69% pirating in some way, and over half using file-sharing software to pirate films and television programs. </p>
<p>The <a href="http://www.ipawareness.com.au/LiteratureRetrieve.aspx?ID=120742">following year</a> the attitude and rate of piracy of movie and television programs in Australia had “remained consistent”. </p>
<p>The <a href="http://www.ipawareness.com.au/LiteratureRetrieve.aspx?ID=120375">2012 report</a> stated that more than a quarter of those surveyed were persistent or casual illegal downloaders (i.e. downloading at least once a month). A further 10% noted they had but were no longer downloading illegal content. The report also indicated that the “persistent” downloaders were downloading more television programs than movies. </p>
<p>In <a href="http://www.ipawareness.com.au/LiteratureRetrieve.aspx?ID=157662">2013</a> those who were persistent or casual illegal downloaders dropped by a small margin of 2%. But research by Sycamore Research and Newspoll in 2014 <a href="http://www.ipawareness.com.au/LiteratureRetrieve.aspx?ID=178182">showed</a> “29% of Australian adults admitting to being active pirates”, up 4% from the previous year.</p>
<p>What maybe more surprising for some is that piracy rates in Australia correlate with <a href="http://www.theaustralian.com.au/business/media/online-piracy-appeals-most-to-those-who-are-better-educated/story-fna03wxu-1226660999120">level of income and education</a>. The rate of piracy more than doubles between those with a household income of A$40,000 (14%) to over A$100,000 (30%). The rate is highest in Victoria (25%) and metro areas far outweigh regional areas, 25% to 16%.</p>
<p>Even the US ambassador to Australia, Jeffrey Bleich, has <a href="https://www.facebook.com/notes/ambassador-bleich/stopping-the-game-of-clones/542850132425361">asked Australians</a> to stop pirating Game of Thrones after the launch of season 3. In his Facebook message, Stop the Game of Clones, he states:</p>
<blockquote>
<p>As the Ambassador here in Australia, it was especially troubling to find out that Australian fans were some of the worst offenders with among the highest piracy rates of Game of Thrones in the world. While some people here used to claim that they used pirate sites only because of a delay in getting new episodes here, the show is now available from legitimate sources within hours of its broadcast in the United States.</p>
</blockquote>
<p>The post resulted in numerous opposing comments, resulting in a second post, <a href="https://www.facebook.com/notes/former-us-ambassador-jeffrey-bleich/return-of-the-clones/546315188745522">Return of the Clones</a>.</p>
<p>But Australia should not be seen as a country of pirates, nor should piracy be seen as the social norm in this country. <a href="http://www.abc.net.au/news/2014-10-15/piracy-cancer-will-kill-australian-film-tv-industry-john-jarratt/5815864">The ABC reports</a> that 60% of Australian adults and 66% of Australians aged 12 to 17 said they had never downloaded or streamed pirated content.</p>
<h2>Why are Australian’s downloading TV and movies?</h2>
<p>The main reasons Australians give for pirating content are cost and availability of content. In 2010 <a href="http://www.news.com.au/">News.com.au</a> completed market research that <a href="http://www.news.com.au/technology/internet-pirates-say-theyd-pay-for-legal-downloads/story-e6frfro0-1225863187697">reported</a> that TV shows were more regularly downloaded than films or music. </p>
<p>The study also showed that:</p>
<blockquote>
<p>The most popular prices for legal downloads chosen by respondents were $1 per TV show, $2 per movie and 50c per music track.</p>
</blockquote>
<p>The discussion of price was again raised in 2014 by the Communications Alliance <a href="http://www.commsalliance.com.au/__data/assets/pdf_file/0003/46857/Online-Copyright-Infringement-Summary.pdf">Online Copyright Infringement Research Report</a>, which <a href="http://www.afr.com/business/telecommunications/aussies-say-theyll-stop-pirating-tv-shows-if-they-get-better-access-20141112-11l84h#">noted</a> that “most Australians believe cheaper and easier access to content will solve piracy problems”. </p>
<p>The report found that Australians believe that A$1.20 per episode was the optimal price for television content, which is less than half the iTunes price for standard-definition shows, at $A2.99 per episode, and far from the high-definition price of A$3.49 per episode. </p>
<p>The <a href="http://www.ipawareness.com.au">Intellectual Property Awareness Foundation</a> reports of 2012 and 2013 also had interesting results. During <a href="http://www.ipawareness.com.au/LiteratureRetrieve.aspx?ID=120375">2012</a>, when acting legally, the preferred method from those surveyed was to stream content rather than downloading it. The following year the <a href="http://www.ipawareness.com.au/LiteratureRetrieve.aspx?ID=157662">research showed</a> a 4% increase on the uptake of pay-per-view services from the previous year.</p>
<h2>Exclusive issues</h2>
<p>Despite the many years of discussion around Australians’ delayed access to content, it still continues. The most pirated television program, Game of Thrones, is restricted to Foxtel, which has only a <a href="http://www.theguardian.com/media/2014/sep/04/foxtel-halves-price-basic-pay-tv-package">30% penetration</a> rate in Australian households. </p>
<p>This is in comparison to the US, where pay TV has <a href="http://www.marketingcharts.com/television/us-pay-tv-penetration-2010-2014-45625/">over 80%</a> penetration, and 50% in the UK. Therefore, in the local environment, 70% of households will not have access to the program – at least, not without subscribing to a large package of other programs and channels.</p>
<p>In the US the latest season will be available via the new HBO Now service via Apple TV, at a cost of <a href="http://www.smh.com.au/digital-life/digital-life-news/how-aussies-geododgers-could-benefit-from-new-apple-tv-deal-with-hbo-now-20150309-13zq7z.html">US$14.99 per month</a>. For Australians this won’t be an option, unless they wish to attempt bypassing geo-blocking. Again, the content producers are demonstrating a “restrictive” – or as they may say, “exclusive” – ideology. </p>
<p>As noted previous, Australians’ approach toward subscription television is far different to those in the US. In Australia, television was developed on a free-to-air model. Subscription services like Foxtel are still young in comparison to the US, which has a <a href="http://www.fcc.gov/encyclopedia/evolution-cable-television">long history</a> of pay television.</p>
<p>In the US there has been a recent decline in the subscription rate of pay television with the introduction of Netflix. A report by Leichtman Research Group stated that:</p>
<blockquote>
<p>48% of US households that don’t subscribe to pay TV now pay a monthly Netflix bill, up from just 29% in 2012 and 16% in 2010.</p>
</blockquote>
<p>Netflix has also been shown to lower the BitTorrent traffic in the countries it operates within. Netflix’s chief content officer, Ted Sarandos, <a href="http://www.stuff.tv/news/netflixs-ted-sarandos-talks-arrested-development-4k-and-reviving-old-shows#RlAHmETKxVCxc09T.99">noted</a>:</p>
<blockquote>
<p>When we launch in a territory the Bittorrent traffic drops as the Netflix traffic grows. So I think people do want a great experience and they want access – people are mostly honest. The best way to combat piracy isn’t legislatively or criminally but by giving good options.</p>
</blockquote>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/77614/original/image-20150410-2122-15zpjh9.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/77614/original/image-20150410-2122-15zpjh9.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/77614/original/image-20150410-2122-15zpjh9.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=338&fit=crop&dpr=1 600w, https://images.theconversation.com/files/77614/original/image-20150410-2122-15zpjh9.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=338&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/77614/original/image-20150410-2122-15zpjh9.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=338&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/77614/original/image-20150410-2122-15zpjh9.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=424&fit=crop&dpr=1 754w, https://images.theconversation.com/files/77614/original/image-20150410-2122-15zpjh9.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=424&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/77614/original/image-20150410-2122-15zpjh9.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=424&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">The arrival of video-on-demand services such as Netflix in Australia may reduce the incidence of piracy.</span>
<span class="attribution"><span class="source">Dekuwa/Flickr</span>, <a class="license" href="http://creativecommons.org/licenses/by-nc/4.0/">CC BY-NC</a></span>
</figcaption>
</figure>
<h2>Will the new VoD services assist with piracy in Australia?</h2>
<p>Whilst we can continue to make the comparisons between Australia, the United States and the United Kingdom, we need to be clear about the differences between the media structures and business models of the countries.</p>
<p>Whilst Australia emulates parts of the US and UK models, Australian viewing and sourcing of media, particularly television, differs from the other two countries.</p>
<p>Australia’s free-to-air broadcasters have made attempts to hinder piracy by “fast-tracking” programs, but it appears this has not had a major impact. This may be due to the limited prime-time hours available to Australia’s three commercial broadcasters and the added costs to broadcast a program at the same time as it is launched in the US.</p>
<p>While the new <a href="https://theconversation.com/what-do-netflix-stan-and-presto-mean-for-australian-tv-39244">video-on-demand (VoD)</a> services – Stan, Presto and Netflix – could assist in reducing piracy, as evident by the results in the US with Netflix, there still is the issue of “exclusive” rights, in particular with Foxtel. </p>
<p>This could change in the future as Foxtel is a joint partner with Seven in Presto. But for now Game of Thrones remains solely with Foxtel. This could yet again see Australia top the piracy charts for season 5.</p><img src="https://counter.theconversation.com/content/39912/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Marc C-Scott is a board member of C31 Melbourne (Community Television Station).</span></em></p>Australians are amongst the top pirates of movies and television worldwide, but that may change in time.Marc C-Scott, Lecturer in Digital Media, Victoria UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/398012015-04-08T00:49:16Z2015-04-08T00:49:16ZCopyright trumps privacy in Dallas Buyers Club ruling<figure><img src="https://images.theconversation.com/files/77265/original/image-20150407-26496-1owu2b6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The Dallas Buyers Club ruling is a further attack on online privacy.</span> <span class="attribution"><a class="source" href="http://www.voltagepictures.com/details.aspx?ProjectId=131e77c6-d02a-e211-a8d1-d4ae527c3b65">Voltage Pictures</a></span></figcaption></figure><p>Our <a href="https://theconversation.com/au/topics/online-privacy">online privacy</a> is constantly under threat. Our activities on the internet are monitored for a variety of reasons and our <a href="http://www.un.org/en/documents/udhr/index.shtml#a12">human right of privacy</a> is often pitted against other human rights like freedom of expression. </p>
<p>Such situations require an appropriate balance to be struck, and there are <a href="https://theconversation.com/google-court-ruling-creates-a-more-forgetful-internet-26696">signs of privacy gaining ground</a>. But there is one interest that always seems to trump privacy: the financial interest protected by copyright.</p>
<p>Only yesterday the Federal Court of Australia <a href="http://www.austlii.edu.au/au/cases/cth/FCA/2015/317.html">ruled</a> that a group of internet service providers (ISPs) are required to disclose details of almost 5,000 of their account holders to a Hollywood studio. The individuals in question are alleged to have illegally downloaded the movie Dallas Buyers Club over the internet without permission.</p>
<p>The case is being discussed as a landmark “<a href="http://www.theaustralian.com.au/business/latest/iinet-loses-dallas-buyers-club-landmark-piracy-case/story-e6frg90f-1227294508657">anti-piracy</a>” case. However, for most Australians, it is more importantly a landmark “anti-privacy” case.</p>
<h2>The background</h2>
<p>The dispute arose when the copyright holders of Dallas Buyers Club, Voltage Pictures, <a href="http://www.smh.com.au/digital-life/digital-life-news/dallas-buyers-club-slays-iinet-in-landmark-piracy-case-20150407-1mey38.html">hired a German firm</a> to identify individuals illegally sharing the film online. They subsequently identified 4,726 Australian <a href="http://www.pcmag.com/encyclopedia/term/45349/ip-address">IP addresses</a> they associated with the sharing of the movie via <a href="http://www.pcmag.com/encyclopedia/term/38716/bittorrent">BitTorrent</a>. </p>
<p>To link those IP addresses to real people – who can be made to pay for the alleged copyright violations – the copyright owners needed the help of the Australian ISPs that had distributed those IP addresses to their users. That is, only the ISPs can provide the necessary link between the infringing IP address and the account holder who was assigned that IP address at that particular time.</p>
<p>When a group of Australian ISPs refused to disclose the personal details of their users to the US copyright owners, the copyright owners sought the assistance of the courts by filing a “discovery application”, a tactic previously applied in other parts of the world. </p>
<h2>The rules about legal ‘discovery’</h2>
<p>A key issue in the case was the fact that, in many circumstances, several people share the same internet connection. Consequently, in such situations the actual offender may not be the account holder. In essence, what the copyright owners wanted was for the ISPs to be forced to reveal the identity of the account holders so that the account holders could be forced to identify the actual offenders. </p>
<p>This issue went to the heart of the court proceedings. The judge – <a href="http://www.fedcourt.gov.au/about/judges/current-judges-appointment/current-judges/perram-j">Nye Perram</a> – acknowledged that, to meet the requirements of the relevant provision of the law (<a href="http://www.austlii.edu.au/au/legis/cth/num_reg/fcr2011n134o2011269/s7.22.html">Federal Court Rules 7.22</a>), it was necessary for the copyright owners to satisfy the court that the ISPs know or are likely to know the identity of the prospective respondent. Ostensibly, this is the person or persons who infringed copyright.</p>
<p>Given the ISPs can only identify the account holders, not the actual offenders, the law does not seem to support the copyright owner’s application to be provided with the personal information of the account holders. </p>
<p>However, through what can only be described as a legal contortionist show, justice Perram managed to read the relevant law to mean something different to what it says, so that the discovery sought by the copyright owners could be allowed after all. </p>
<p>The problem is obvious: where the law is bent and twisted to such a degree, it will never be straight again. And where the law does not mean what it says, it is a failure. </p>
<h2>Privacy issues</h2>
<p>The potential difference between account holders and actual copyright infringers is relevant also when it comes to one of the privacy concerns the case gives rise to. After all, if the copyright infringer and the account holder are different people, then a notice containing a description of the content that is alleged to have been downloaded may disclose sensitive personal information about the alleged infringer to the account holder. </p>
<p>Such handling of personal information is only lawful where it is authorised under the <a href="http://www.comlaw.gov.au/Series/C2004A03712">Privacy Act 1988</a>. Yet this matter was not even mentioned in the judgement.</p>
<p>Instead, justice Perram saw the privacy aspect as properly disposed of merely by imposing a condition that the copyright owners only would be allowed to use the personal details of the relevant 4,726 Australians for the purpose of recovering compensation for the infringements. </p>
<p>As this restriction does not require anything that is not already required under the Privacy Act 1988, it does not really soften the blow to privacy that this decision represents.</p>
<p>Other privacy concerns relate to questions such as: </p>
<ol>
<li><p>How will the copyright owners choose which internet users they place under surveillance?</p></li>
<li><p>Is there a risk that the personal information collected by the copyright holders will attract hackers <a href="http://arstechnica.com/tech-policy/2011/05/france-halts-three-strikes-ip-address-collection-after-data-leak/">as happened in France</a>?</p></li>
<li><p>Are there any privacy risks stemming from the fact that the surveillance of Australian internet users is carried out from abroad, and from the fact that personal information about Australian internet users is at risk of being exported to copyright owners overseas? </p></li>
</ol>
<p>The groundwork for a judgement hostile to privacy like this was laid down already in 2011 by the High Court of Australia in <a href="http://www.austlii.edu.au/au/cases/cth/HCA/2012/16.html">another anti-piracy dispute</a>. In the context of that case, the <a href="https://www.privacy.org.au/">Australian Privacy Foundation</a> had <a href="https://www.privacy.org.au/Papers/HCA-Amicus-iiNet-111007.pdf">filed a “friend of the court” brief</a> (<a href="http://en.wikipedia.org/wiki/Amicus_curiae"><em>amicus curiae</em></a>) seeking to draw attention to the considerable privacy concerns that arise where ISPs are forced to reveal customer information to copyright owners. However, the High Court <a href="http://www.austlii.edu.au/au/cases/cth/HCA/2011/54.html">took no interest in the privacy angle</a>.</p>
<p>The concern for the future is obvious. With a precedent like that set by justice Perram, monetary copyright interest are given a carte blanche to continue to trump our fundamental human right of privacy, with increased online surveillance as the tragic consequence.</p><img src="https://counter.theconversation.com/content/39801/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Dan Jerker B. Svantesson is an ARC Future Fellow (project number FT120100583) and receives funding from the Australian Research Council. The views expressed herein are those of the author and are not necessarily those of the Australian Research Council.
In 2011, he was a Deputy Chair of the Australian Privacy Foundation and the lead author of the amicus brief referred to in the text.
</span></em></p>The Dallas Buyers Club court ruling has serious implications for online privacy.Dan Jerker B. Svantesson, Co-Director Centre for Commercial Law, Bond UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/359732015-01-08T09:40:32Z2015-01-08T09:40:32ZCourthouse Rock: Elvis’s legal legacy at 80<figure><img src="https://images.theconversation.com/files/68357/original/image-20150107-1974-9k4q60.png?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Cultural icon, legal headache</span> <span class="attribution"><a class="source" href="http://www.flickr.com/photos/that_chrysler_guy/8361254955/">That Hartford Guy</a>, <a class="license" href="http://creativecommons.org/licenses/by-sa/4.0/">CC BY-SA</a></span></figcaption></figure><p>When asked in 1977 what he would do now that Elvis was dead, his manager Colonel Parker allegedly replied: “<a href="papers.ssrn.com/sol3/papers.cfm?abstract_id=740554">Why, I’ll just go right on managing him!</a>”. In Parker’s mind, neither Elvis’ name, image, likeness and sound nor his economic value died with him.</p>
<p>On January 8 2015, Elvis would have been 80 years old. And nearly 40 years after his death, he continues to appear among Forbes Magazine’s <a href="http://www.forbes.com/pictures/mfl45hggm/no-2-elvis-presley/">top-earning dead celebrities</a>, even if he has been toppled from the number 1 spot by by Michael Jackson.</p>
<p>But there is another side to the Elvis legacy. On top of his cultural contributions and the cash he continues to generate for those associated with him, he has made a rather significant post-mortem contribution to legal history. Those who have successively managed his image and likeness – and of course Colonel Parker was the first – have been at the vanguard of the celebrity character merchandising industry.</p>
<p>They have contributed to the development of celebrity rights law, especially the <a href="http://en.wikipedia.org/wiki/Personality_rights">US right of publicity</a> as an intellectual property right that can be passed on to heirs, rather than simply a personal right which dies with the owner. That means that a celebrity’s children can not only inherit the rights to exploit his or her image and likeness, but also sell them on to others. </p>
<h2>Courthouse rock</h2>
<p>Most significant has been their management of the paradox of circulation and control. They balanced the need to protect the holder’s exclusive rights over the property whilst also allowing some circulation of the Elvis signs and symbols to enable entirely new and younger audiences to engage with Elvis and keep him alive in the public consciousness. </p>
<p>Parker’s fighting words of 1977 were fairly short-lived. He soon found it increasingly difficult to apply the exclusive control that he once exercised over the Elvis brand, particularly after his own competence as guardian of the Elvis legacy was <a href="http://www.dailymail.co.uk/tvshowbiz/article-124163/Elvis-uncovered.html">called into question</a>.</p>
<p>When Parker lost his grip, Elvis Presley Enterprises was formed to manage the estate. It sought to first consolidate all Elvis assets, then expand the business they generated. Facing bankruptcy, one of its earliest moves was to open Graceland to the public on a commercial basis in the early 1980s.</p>
<p>The next strategy was to gain legal control over the most valuable asset – the Elvis Presley name, image and likeness. This was achieved over the next decade or so through <a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=740554">five major US legal actions</a>. Factors v Pro-Arts defined control of his likeness, while Memphis Development fought Factors between 1977 and 1980 for control of his name. The next two cases confirmed the “descendibiity” of the rights to his heirs.</p>
<p>The final lawsuit in 1991 – which saw the small UK firm Elvisly Yours barred from trading in goods bearing the name or likeness of Elvis Presley – effectively put the genie back in the bottle. Elvis Presley Enterprises became regarded as the <a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=740554">Darth Vader of character merchandising</a>. It had effectively put a stop to anyone else profiting from Elvis.</p>
<h2>The world wide wonder of you</h2>
<p>The problem for Elvis Presley Enterprises and later for their successors was that in the early days of the internet, the Elvis likeness became one of the images most exploited by websites. Its use was so widespread in the 1990s and early 2000s that there was concern that it would become generic –– exactly the worry that <a href="http://www.theatlantic.com/business/archive/2014/09/kleenex-is-a-registered-trademark-and-other-appeals-to-journalists/380733/">keeps all intellectual property lawyers awake at night</a>.</p>
<p>Elvis began to be “consumed” in new and unexpected ways via the internet. <a href="http://articles.latimes.com/1995-09-02/news/mn-41565_1_elvis-presley">Academic courses on Elvis study</a> emerged, he became a <a href="http://theconversation.com/the-quasi-religious-significance-of-elvis-king-of-rock-n-roll-35300">spiritual icon</a>, and a number of <a href="http://hyperdiscordia.crywalt.com/sacred_heart_elvis.html">Elvis-based religions</a> were founded.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/68358/original/image-20150107-2002-6dtx6s.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/68358/original/image-20150107-2002-6dtx6s.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/68358/original/image-20150107-2002-6dtx6s.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/68358/original/image-20150107-2002-6dtx6s.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/68358/original/image-20150107-2002-6dtx6s.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/68358/original/image-20150107-2002-6dtx6s.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/68358/original/image-20150107-2002-6dtx6s.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Demand for Elvis continues to outstrip supply.</span>
<span class="attribution"><a class="source" href="http://www.flickr.com/photos/pagedooley/4464019859">Kevin Dooley</a>, <a class="license" href="http://creativecommons.org/licenses/by/4.0/">CC BY</a></span>
</figcaption>
</figure>
<p>Offline, he has been cloned, in the sense that he was, and still is, widely impersonated and sampled on <a href="http://www.slate.com/articles/arts/number_1/2002/07/elvis_presley.html">modern music tracks</a>. He has even been digitally recreated in official tribute concerts with his original backing band.</p>
<h2>Slightly less suspicious minds</h2>
<p>While the public is still expected to pay for the privilege of consuming the King, there has been a change of approach when it comes to the legal side of his legacy more recently.</p>
<figure class="align-left zoomable">
<a href="https://images.theconversation.com/files/68399/original/image-20150107-1995-j4ab91.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/68399/original/image-20150107-1995-j4ab91.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/68399/original/image-20150107-1995-j4ab91.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=1521&fit=crop&dpr=1 600w, https://images.theconversation.com/files/68399/original/image-20150107-1995-j4ab91.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=1521&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/68399/original/image-20150107-1995-j4ab91.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=1521&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/68399/original/image-20150107-1995-j4ab91.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1911&fit=crop&dpr=1 754w, https://images.theconversation.com/files/68399/original/image-20150107-1995-j4ab91.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1911&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/68399/original/image-20150107-1995-j4ab91.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1911&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">No home is complete…</span>
</figcaption>
</figure>
<p>There is less litigation than in the past and “cease-and-desist” letters are becoming infrequent. A licensing policy is now the favoured approach, ensuring that revenues are generated from these new forms of consumption. In my own household, for example, we now proudly own, amongst the merchandising, a licensed Elvis ironing board.</p>
<p>Elvis at 80 is a piece of intellectual real estate that can be traded on the market. In 2005, <a href="http://en.wikipedia.org/wiki/Elvis_Presley_Enterprises">Elvis Presley Enterprises</a> sold 85% of the rights to Elvis to CKX Inc (now <a href="http://www.coremediagroup.com/portfolio.html">Core Media Group</a>) and in 2013 these rights were sold on to the <a href="http://www.authenticbrandsgroup.com/our-brands.php">Authentic Brands Group</a>.</p>
<p>His popularity shows no sign of waning – Graceland is the second most visited private residence in the US next to the White House. The question is, though, is whether or not his enduring popularity a result of his commodification or does it come in spite of it? Given that Graceland was almost bankrupt 35 years ago and is now a thriving business built around Elvis, the balancing act between circulation and control of the images seems to have worked.</p>
<p>But I do wonder what would happen if Elvis were still alive on his 80th birthday, because there are still those who think he still lives. Could he knock on the door of Graceland to say that he wants to be Elvis again or would he have to pay a licence fee to do it?</p><img src="https://counter.theconversation.com/content/35973/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>David S. Wall does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>When asked in 1977 what he would do now that Elvis was dead, his manager Colonel Parker allegedly replied: “Why, I’ll just go right on managing him!”. In Parker’s mind, neither Elvis’ name, image, likeness…David S. Wall, Professor of Criminology, Durham UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/344182014-11-24T19:36:33Z2014-11-24T19:36:33ZBlocking piracy websites is bad for Australia’s digital future<figure><img src="https://images.theconversation.com/files/65299/original/image-20141124-19627-12l61m8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Website blocking always fails – audiences will always find a way to watch Game of Thrones.</span> <span class="attribution"><span class="source">Foxtel</span></span></figcaption></figure><p>Rumours are <a href="http://www.smh.com.au/digital-life/digital-life-news/online-piracy-websites-set-to-be-blocked-sources-20141117-11o8pz.html">flying</a> that the government will introduce legislation before Christmas aimed at blocking certain websites, such as The Pirate Bay and Kickass Torrents, as part of a range of efforts to reduce copyright infringement in Australia.</p>
<p>Although the details are unclear at this stage, it looks like the law will allow copyright owners such as movie distributors and record labels to seek a court order to block sites that facilitate peer-to-peer file sharing, providing access to copied content.</p>
<p>This looks like a good idea, and it’s certainly a less intrusive approach than “extended authorisation liability”, the last copyright reform which the government <a href="http://www.ag.gov.au/Consultations/Documents/Onlinecopyrightinfringement/FINAL%20-%20Online%20copyright%20infringement%20discussion%20paper%20-%20PDF.PDF">proposed</a> in July and then <a href="http://www.smh.com.au/federal-politics/political-news/turnbull-admits-unanimous-opposition-to-copyright-law-proposal-20140910-10ethp.html">hurriedly dropped</a> in the face of almost universal condemnation. </p>
<p>The problem is that website blocking always fails. </p>
<p>The technical problems with website blocking are the most obvious. Basically, you can block at the domain name level, or at the level of the internet address. </p>
<p>Blocking domain names means that the content owner convinces a court to tell internet service providers (ISPs) to drop problematic domain names from their name servers. This means that when a copyright scofflaw like, well, me, tries to get access to <a href="http://thepiratebay.se">The Pirate Bay</a> nothing happens. The domain name doesn’t resolve correctly, and so it’s like the site doesn’t exist. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/65261/original/image-20141124-1046-on3h4h.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/65261/original/image-20141124-1046-on3h4h.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/65261/original/image-20141124-1046-on3h4h.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=406&fit=crop&dpr=1 600w, https://images.theconversation.com/files/65261/original/image-20141124-1046-on3h4h.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=406&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/65261/original/image-20141124-1046-on3h4h.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=406&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/65261/original/image-20141124-1046-on3h4h.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=510&fit=crop&dpr=1 754w, https://images.theconversation.com/files/65261/original/image-20141124-1046-on3h4h.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=510&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/65261/original/image-20141124-1046-on3h4h.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=510&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Co-founder of The Pirate Bay, Swede Hans Fredrik Lennart Neij, was arrested in Nong Khai province, Thailand, earlier this month.</span>
<span class="attribution"><span class="source">EPA/STR THAILAND OUT</span></span>
</figcaption>
</figure>
<p>There are some good policy reasons to be troubled about this type of action — essentially it breaks <a href="https://theconversation.com/explainer-net-neutrality-2315">the guarantee of internet connectivity</a> — but even if the government ignores that principle, the bigger problem is that it just doesn’t work. </p>
<p>The Pirate Bay will just change its domain name, forcing a constant game of Whack-A-Mole for the content companies and the courts. In any event, I can still get access to The Pirate Bay by getting a <a href="https://theconversation.com/harpers-competition-review-is-good-news-for-netflix-consumers-32092">virtual private network</a> (VPN) or change my domain name system (DNS) lookup server. (It sounds complicated, but trust me, every 15-year old will know how to do this if the government introduces domain name blocking.)</p>
<h2>Blocking is a technical nightmare</h2>
<p>Blocking websites at the internet address level is trickier. This involves stopping all traffic from a given IP (internet protocol) number or a given block. </p>
<p>The problem with this type of action is that it inevitably catches and stops some innocent content. For networking reasons numerous websites can share the same IP number or address block, and so shutting down one IP address can wipe out other sites that are completely fine. </p>
<p>Back in 2013, the Australian Securities and Investment Commission (ASIC) applied a little-used section of the Telecommunications Act to block three websites that were hosting investment scams. ASIC ended up with <a href="http://www.computerworld.com.au/article/553342/asic_reveals_depth_ignorance_over_website_blocking_debacle/">egg on its face</a> when the block also wiped out Australian access to around 250,000 innocent websites that happened to be hosted on the same address.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/65335/original/image-20141124-19639-7su3mk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/65335/original/image-20141124-19639-7su3mk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/65335/original/image-20141124-19639-7su3mk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=440&fit=crop&dpr=1 600w, https://images.theconversation.com/files/65335/original/image-20141124-19639-7su3mk.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=440&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/65335/original/image-20141124-19639-7su3mk.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=440&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/65335/original/image-20141124-19639-7su3mk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=553&fit=crop&dpr=1 754w, https://images.theconversation.com/files/65335/original/image-20141124-19639-7su3mk.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=553&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/65335/original/image-20141124-19639-7su3mk.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=553&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Communications Minister Malcolm Turnbull looks set to introduce laws favouring US content providers.</span>
<span class="attribution"><span class="source">AAP/ Nikki Short</span></span>
</figcaption>
</figure>
<p>The other really serious technical problem is that you actually can’t block many of the places where infringing content is hosted. When I download a movie using BitTorrent (a peer-to-peer file transfer protocol), a huge swarm of computers from all over the internet is responsible for sending me bits and pieces of the movie file. </p>
<p>Although a court could order ISPs to block sites like The Pirate Bay that aggregate the initial seed for the torrent files, there is no way to block all the computers that eventually provide me with the movie.</p>
<p>So all in all, blocking is a technical nightmare. However, these problems pale compared with the policy problem of how you write a law that catches only the “bad guys”. </p>
<p>The law can’t just block sites that host infringing content, because sites such as The Pirate Bay actually don’t host infringing content. But if you draft the law to catch sites like this which help me find movie torrents, then you’re going to shut down Google. </p>
<p>Beyond Google – who will never let a law like this get through – a poorly drafted law will inevitably be used to threaten Australia’s nascent cloud computing industry, because cloud storage is where a large number of infringing files are found these days. </p>
<p>So, once again, we’ll have laws that favour US content industries at the expense of Australia’s digital future.</p>
<p>At best, blocking laws might be slightly effective to reduce the access to overseas movie streaming sites. Maybe. This should make Foxtel and Australian market newcomer Netflix happy because a small number of people will buy a subscription because they can no longer get programs like Game of Thrones free on the internet. </p>
<p>But after a while you have to ask whether it’s worth spending the amount of time, money, and effort that the government keeps expending to keep the copyright lobby happy.</p><img src="https://counter.theconversation.com/content/34418/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Dan Hunter does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Rumours are flying that the government will introduce legislation before Christmas aimed at blocking certain websites, such as The Pirate Bay and Kickass Torrents, as part of a range of efforts to reduce…Dan Hunter, Dean, Swinburne Law School, Swinburne University of TechnologyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/327822014-11-06T09:49:21Z2014-11-06T09:49:21ZThe next great copyright act should be flexible and forward-looking<figure><img src="https://images.theconversation.com/files/62404/original/3gz2hqr8-1413908475.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Shutterstock</span></span></figcaption></figure><p>Congress has recently stepped up its efforts to reform the copyright system, which is woefully inadequate to deal with today’s rapidly evolving communication technologies. These efforts began early last year after Maria Pallante, the US Register of Copyrights, urged lawmakers to review the existing system and come up with <a href="http://www.law.columbia.edu/null/download?&exclusive=filemgr.download&file_id=612486">“the next great copyright act.”</a> </p>
<p>Updating our aging copyright laws, however, will not be easy. Although the entertainment industries have called for stronger protection and enforcement, internet users and civil society groups fear that tighter protection would stifle technological innovation while impeding access to knowledge and information. The two sides are unlikely to agree any time soon.</p>
<h2>Past reform efforts</h2>
<p>Even worse, copyright reform efforts have often led to unintended consequences. For example, the Digital Millennium Copyright Act of 1998 was designed to facilitate the use of technology to protect movies, music and computer software. Yet, the law has been <a href="https://www.eff.org/wp/unintended-consequences-under-dmca">misused</a> to stifle competition over technologies not on the minds of lawmakers, such as garage door openers and printer toner cartridges.</p>
<p>Likewise, many copyright penalties were created with commercial pirates in mind. In the past decade, however, they have been repeatedly used to target individual non-commercial activities. Frustrated by this growing trend, some of the biggest names on the web such as Wikipedia, Reddit and WordPress staged a <a href="http://www.theguardian.com/commentisfree/cifamerica/2012/jan/18/sopa-blackout-protest-makes-history">service blackout</a> in 2012, amid the public protest against the Stop Online Piracy Act.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/62673/original/8q87v7bm-1414098382.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/62673/original/8q87v7bm-1414098382.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/62673/original/8q87v7bm-1414098382.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=439&fit=crop&dpr=1 600w, https://images.theconversation.com/files/62673/original/8q87v7bm-1414098382.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=439&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/62673/original/8q87v7bm-1414098382.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=439&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/62673/original/8q87v7bm-1414098382.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=552&fit=crop&dpr=1 754w, https://images.theconversation.com/files/62673/original/8q87v7bm-1414098382.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=552&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/62673/original/8q87v7bm-1414098382.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=552&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Wikipedia was part of a widespread internet blackout in 2012 to protest copyright reform bills that some argued would stifle the free exchange of ideas.</span>
<span class="attribution"><a class="source" href="https://www.flickr.com/photos/lightwerk/6718787953/in/photolist-beHxzB-61Ksea-beVuv2-beXBSR-beVewZ-beJmQp-beJxVn-bnwfni-beXuK8-bnwfjt-bmUQJw-bUqRHK-ckzhgE-ckzhmG-ckzhcJ-bUqRMv-bzPF9k-9FtToP-oNsRmh-nYyHWe-beL6zc-2efoxS-beT2jD-beSbgv-dqihQW-619JB6-uzuLW-beXDPt-bf8w5K">Ray Weitzenberg/Flick via CC BY SA</a>, <a class="license" href="http://creativecommons.org/licenses/by-sa/4.0/">CC BY-SA</a></span>
</figcaption>
</figure>
<p>Even when copyright reform seeks to lower protective standards, it has caused unintended consequences. Although Congress has written well-intended copyright exceptions into laws, courts and businesses have later reinterpreted these exceptions as the maximum limits on the use of copyrighted works. </p>
<p>In addition, short-term victories in copyright battles have ushered in dramatic changes to business practices that result in long-term losses. In 2001, freelance authors successfully convinced the Supreme Court to require newspapers to obtain permission before including their articles in electronic databases. Today, however, authors are routinely required to sign away their rights before publication.</p>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/62403/original/n82swn5w-1413908239.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/62403/original/n82swn5w-1413908239.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/62403/original/n82swn5w-1413908239.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=779&fit=crop&dpr=1 600w, https://images.theconversation.com/files/62403/original/n82swn5w-1413908239.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=779&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/62403/original/n82swn5w-1413908239.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=779&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/62403/original/n82swn5w-1413908239.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=979&fit=crop&dpr=1 754w, https://images.theconversation.com/files/62403/original/n82swn5w-1413908239.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=979&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/62403/original/n82swn5w-1413908239.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=979&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">The phonograph, which wasn’t originally intended to be used for entertainment, demonstrates how hard it is to craft good copyright law since we don’t always know how a new technology will be used in the future.</span>
<span class="attribution"><span class="source">Shutterstock</span></span>
</figcaption>
</figure>
<h2>An iterative process</h2>
<p>In view of the continued disagreement and potential unintended consequences, it is more accurate to treat copyright reform as an iterative process. If the past is any guide, reformers will need to remain vigilant. Even with initial success, they will still have to mobilize to protect their gains while continuing to challenge the undesirable status quo.</p>
<p>To complicate the reform process, predicting the future use or impact of new technology without the benefit of hindsight is virtually impossible. Even though commentators have widely documented the changes brought about by the latest technologies, nobody knows exactly how they will be used in the future.</p>
<p>As Andrew Shapiro <a href="http://books.google.com/books/about/The_Control_Revolution.html?id=4qzZAAAAMAAJ">reminds us</a> in The Control Revolution, the phonograph was not designed for entertainment but to record one’s thoughts. The telephone was intended to pipe music from faraway concert halls into individual homes. If people were asked in the 1960s, they certainly would not have anticipated that television would become a modern-day babysitter. At this point, who knows how cloud computing, 3D printers and robots will eventually be used?</p>
<h2>Flexible, forward-looking reform</h2>
<p>When considering copyright reform, Congress must take into account both the unpredictability of new technology and the unintended consequences new laws will inevitably generate.</p>
<p>First, laws have to be open-ended, flexible and forward-looking, keeping in mind that new technology will lead to changing markets, lifestyles and consumer preferences. While our common law system will facilitate adaptation, legal developments are simply too slow to keep up with technological change.</p>
<p>Second, even though the copyright industries tend to lobby for complicated contract-like provisions to protect their investments, laws should avoid locking in standards that favor incumbents. The more laws are developed with specific business and regulatory models in mind, the less adaptable they are to disruptive technology.</p>
<p>Third, as important as it is to develop future technology, Congress should not lose sight of the authors’ specific needs. There has been a wide debate on what copyright holders or technology developers want, but much less discussion on what authors actually need. No matter how successful our financial or technological environment is, authors still need sufficient economic and non-economic support to engage in full-time cultural production.</p>
<p>Finally, laws should anticipate the global participation of individual users. Today, people are no longer just watching programs on television or listening to CDs. Instead, they write emails, listen to music stored in the cloud, generate mash-ups of worldwide digital content and watch foreign shows recommended by distant friends. Any laws that fail to consider these activities and the related consumer expectations will quickly become obsolete.</p><img src="https://counter.theconversation.com/content/32782/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Peter K. Yu does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Congress has recently stepped up its efforts to reform the copyright system, which is woefully inadequate to deal with today’s rapidly evolving communication technologies. These efforts began early last…Peter K. Yu, Kern Family Chair in Intellectual Property Law, Drake UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/335852014-11-05T19:23:34Z2014-11-05T19:23:34ZA real victim of online piracy is Australian indie cinema<figure><img src="https://images.theconversation.com/files/63504/original/wzwr7s4n-1414985334.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The Sapphires (2012), starring Jessica Mauboy, had attracted 123,030 illegal downloads worldwide by October 2013.</span> <span class="attribution"><span class="source">APP/Dan Himbrechts</span></span></figcaption></figure><p>Game of Thrones downloaders need not fear data retention plans, <a href="http://www.smh.com.au/federal-politics/political-news/game-of-thrones-downloaders-need-not-fear-data-retention-plans-says-malcom-turnbull-20141031-11etrn.html">said</a> Communications Minister Malcolm Turnbull last Friday. </p>
<p>Perhaps there is nothing for pirates to fear from Turnbull, but the Attorney-General George Brandis, is a dreadnought of a different disposition. <a href="https://theconversation.com/turnbull-agencies-wont-get-access-to-more-forms-of-data-33635">Data retention</a> will go a long way to facilitate <a href="https://theconversation.com/brandis-leaked-anti-piracy-proposal-is-unrealistic-29709">his crusade</a> to crack down on internet piracy. </p>
<p>But who is the biggest loser in this modern epidemic of online piracy?</p>
<p>Speaking at the Australian Digital Alliance forum on February 14 this year, Brandis <a href="http://www.attorneygeneral.gov.au/Speeches/Pages/2014/First%20Quarter%202014/14February2014-openingoftheAustralianDigitalAllianceForum.aspx">said</a> that he stood on the side of content creators in the copyright debate. </p>
<p>Perhaps he should have said “rights holders” because content creators are not necessarily the owners of copyright. Ask any wage slave in an animation film factory.</p>
<p>Brandis told the forum:</p>
<blockquote>
<p>I firmly believe the fundamental principles of copyright law, the protection of rights of creators and owners did not change with the advent of the internet and they will not change with the invention of new technologies. </p>
</blockquote>
<p>Last week, the commissioner of the Australian Federal Police, Andrew Colvin, confirmed “<a href="http://www.smh.com.au/federal-politics/political-news/game-of-thrones-downloaders-need-not-fear-data-retention-plans-says-malcom-turnbull-20141031-11etrn.html">absolutely</a>” that the legislation could be used in the war on illicit downloading of copyright content.</p>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/63506/original/5ffrz5tg-1414985520.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/63506/original/5ffrz5tg-1414985520.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/63506/original/5ffrz5tg-1414985520.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=887&fit=crop&dpr=1 600w, https://images.theconversation.com/files/63506/original/5ffrz5tg-1414985520.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=887&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/63506/original/5ffrz5tg-1414985520.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=887&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/63506/original/5ffrz5tg-1414985520.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1115&fit=crop&dpr=1 754w, https://images.theconversation.com/files/63506/original/5ffrz5tg-1414985520.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1115&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/63506/original/5ffrz5tg-1414985520.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1115&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Movie poster for Dallas Buyers Club.</span>
<span class="attribution"><span class="source">Truth Entertainment</span></span>
</figcaption>
</figure>
<p>Knowing the data is there will aid fishing expeditions by interests such as the <a href="http://www.antonelli-law.com/Dallas_Buyers_Club__LLC.php">Dallas Buyers Club LLC</a>, the rights owner of the Oscar-winning film <a href="http://www.imdb.com/title/tt0790636/?ref_=fn_al_tt_1">Dallas Buyers Club</a> (2013). They have been pursuing online pirates through the courts in Australia, represented by Antonelli Law.</p>
<p>Dallas Buyers Club LLC use the powers of preliminary discovery, hoping to force internet service providers (ISPs), such as iiNet, its subsidiaries Adam Internet and Internode, Dodo and Amnet Broadband, to reveal the identity of owners of IP addresses that have illegally downloaded copies of Dallas Buyers Club.</p>
<p>If the court action succeeds, identified individuals will receive letters demanding substantial cash licence fees in lieu of further court action. Dallas Buyers Club LLC has followed this practice in several overseas jurisdictions with some success, but the practice has been outlawed in the UK.</p>
<p>Back to the biggest loser … Certainly, the rights holders of big successes in cinema or television suffer losses. </p>
<p>The Australian Content Industry Group (ACIG), <a href="http://www.bsa.org/country/%7E/media/Files/Research%20Papers/enAU/piracyimpact_australia.ashx">relying on work</a> by public policy researchers Sphere Analysis that was published in 2011, has made some claims. </p>
<p>ACIG say the annual value of loss of retail sales to Australian content industries was A$900 million in 2010, and the impact of internet piracy to Commonwealth Government revenues was A$190 million. In addition, some 8,000 jobs were lost in the content industries sector as a result of Internet piracy.</p>
<p>However, the methodology that reached these conclusions was not revealed in detail and so, for many, this was an ambit claim from a partisan player. Nevertheless, while some will claim piracy as a victimless crime, it does have an economic impact, however hard it is to quantify.</p>
<p>According to <a href="http://www.prweb.com/releases/2013/11/prweb11295125.htm">a survey</a> by US data-protection company CEG TEK, in the 30 days leading up to the opening of the American Film Market in November last year, <a href="http://www.imdb.com/title/tt1535108/?ref_=fn_al_tt_1">Elysium</a> (2013) was downloaded a massive 162,000 times a day. That amounted to more than 4.8 million times over the sample period. </p>
<p>How directly the downloads convert to lost ticket sales is unclear. </p>
<p>At a conversion rate of 50% at a ticket price of US$15, that is US$36 million lost. Elysium, with a production budget of US$115 million still grossed US$286,140,700 worldwide so the producers didn’t go broke. But after the exhibitors and distributor took their sizable cuts, the net revenue for the film would be small.</p>
<figure class="align-left zoomable">
<a href="https://images.theconversation.com/files/63505/original/d7sw2rgj-1414985422.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/63505/original/d7sw2rgj-1414985422.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/63505/original/d7sw2rgj-1414985422.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=889&fit=crop&dpr=1 600w, https://images.theconversation.com/files/63505/original/d7sw2rgj-1414985422.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=889&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/63505/original/d7sw2rgj-1414985422.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=889&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/63505/original/d7sw2rgj-1414985422.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1117&fit=crop&dpr=1 754w, https://images.theconversation.com/files/63505/original/d7sw2rgj-1414985422.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1117&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/63505/original/d7sw2rgj-1414985422.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1117&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Movie poster for 100 Bloody Acres.</span>
<span class="attribution"><span class="source">Cyan Films</span></span>
</figcaption>
</figure>
<p>But the biggest losers, the rights holders who are really feeling it in their back pocket, are the independent producers, the rights holders to Australian films such as <a href="http://www.imdb.com/title/tt1673697/?ref_=fn_al_tt_1">The Sapphires</a> (2012) or <a href="http://www.imdb.com/title/tt2290065/?ref_=fn_al_tt_1">100 Bloody Acres</a> (2012). </p>
<p>The same survey by CEG TEK, based on sampling peer-to-peer torrent services, discovered that little Aussie gem The Sapphires, at 46th out of the 100 most downloaded shows of the 2013 sample and 100 Bloody Acres at 95. </p>
<p>The Sapphires was the top grossing Australian film at the Australian box office in 2012, taking A$14.5 million. In October 2013, it was still attracting a lot of illegal downloads – 123,030 worldwide and 18,720 in the USA. That’s forgone revenue of just under A$1 million.</p>
<p>But coming in at 95, with 1,929 downloads a day or 57,870 for the month was 100 Bloody Acres. It was released on 12 screens in the US in June 2013 but took only US$6,388. In Australia, it made A$18,356 at the box office corresponding to a paying cinema audience of around 1,300 all up. </p>
<p>In the CEG TEK sample, about 50% more people illegally down loaded 100 Bloody Acres every single day, than saw it in the cinema. And compared to gross Australian and US revenues of A$24,744, the illegal downloads were worth perhaps A$434,000 in box office sales. Viewed in this way, the impact of piracy is devastating to small producers and genre films.</p>
<p>So in the Australian case at least, the ones really suffering from piracy are the small independent producers such as Cyan Films, not so much the big players like Village Roadshow.</p>
<p>Piracy such as that suffered by The Sapphires and 100 Bloody Acres has the potential to kill the Australian film industry. And while it is said that patriotism is the last refuge of the scoundrel, it might be the best hope for Australian film-makers.</p><img src="https://counter.theconversation.com/content/33585/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Vincent O'Donnell does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Game of Thrones downloaders need not fear data retention plans, said Communications Minister Malcolm Turnbull last Friday. Perhaps there is nothing for pirates to fear from Turnbull, but the Attorney-General…Vincent O'Donnell, Honorary Research Associate of the School of Media and Communication , RMIT UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/320922014-09-26T04:25:17Z2014-09-26T04:25:17ZHarper’s competition review is good news for Netflix consumers<figure><img src="https://images.theconversation.com/files/59987/original/5rrj7cfp-1411617942.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">House of Cards and geographical segmentation tend to get people a little hot under the collar.</span> <span class="attribution"><span class="source">Foxtel</span></span></figcaption></figure><p>It’s been an interesting month in Australian copyright law. </p>
<p>A couple of weeks ago, Communications Minister Malcolm Turnbull <a href="http://www.smh.com.au/federal-politics/political-news/turnbull-admits-unanimous-opposition-to-copyright-law-proposal-20140910-10ethp.html">announced</a> that the government’s proposed reforms to strengthen copyright were dead on arrival. </p>
<p>Then, on Monday, the expert panel conducting the Competition Policy Review, led by <a href="http://competitionpolicyreview.gov.au/review-panel/">Professor Ian Harper</a>, released its <a href="http://competitionpolicyreview.gov.au/draft-report/">draft report</a>. The report recommends the Australian government investigate a range of ways to circumvent geoblocking – that is, overseas content companies using technology and copyright law to segment markets by country in order to extract the maximum value from each jurisdiction.</p>
<p>Harper’s report endorses ways to encourage consumers to bypass geoblocks — good news for the estimated <a href="https://getpocketbook.com/blog/netflix-australia-2-stats-scare-local-players/">200,000 Australians</a> who watch Netflix via a <a href="https://theconversation.com/explainer-what-is-a-virtual-private-network-vpn-12741">Virtual Private Network</a> (VPN) or a US Domain Name System (DNS) server that makes their home computer <a href="http://www.choice.com.au/reviews-and-tests/computers-and-online/networking-and-internet/shopping-online/navigating-online-geoblocks/page/how-to-circumvent-geoblocks.aspx">look like it’s sitting in the US</a>.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/59980/original/z7j7s6bc-1411616537.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/59980/original/z7j7s6bc-1411616537.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/59980/original/z7j7s6bc-1411616537.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=382&fit=crop&dpr=1 600w, https://images.theconversation.com/files/59980/original/z7j7s6bc-1411616537.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=382&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/59980/original/z7j7s6bc-1411616537.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=382&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/59980/original/z7j7s6bc-1411616537.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=480&fit=crop&dpr=1 754w, https://images.theconversation.com/files/59980/original/z7j7s6bc-1411616537.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=480&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/59980/original/z7j7s6bc-1411616537.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=480&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Netflix offers internet video-on-demand streaming for a monthly subscription fee.</span>
<span class="attribution"><span class="source">EPA/Britta Pedersen</span></span>
</figcaption>
</figure>
<h2>Copyright v competition policy</h2>
<p>The proposals in the report are part of a larger battle between copyright and competition policy that’s been raging for years, and which has seen the gradual erosion of laws that forbade the “<a href="http://www.choice.com.au/reviews-and-tests/money/shopping-and-legal/shopping/parallel-imports.aspx">parallel importation</a>” of copyright works. </p>
<p>Until the 1980s the Copyright Act made it illegal to import genuine copies of copyright material without the permission of the Australian distributor. So, it was illegal to go to a country that had cheaper prices than Australia, buy up genuine-but-cheap books or movies or CDs, and ship them into Australia. </p>
<p>This principle is still part of copyright law, but over the last 30 years various competition policy enquiries have chipped away at the principle, and now it applies to a relatively small number of cases.</p>
<p>Content companies haven’t taken this lying down, and they’ve supplemented the law with numerous technologies that segment markets. That’s why DVDs of movies and videogames have regional coding and when you try to watch clips of The Daily Show or The Colbert Report you end up seeing a black screen and the notice:</p>
<blockquote>
<p>This content is not available in your location.</p>
</blockquote>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/59990/original/693y4pb9-1411618715.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/59990/original/693y4pb9-1411618715.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/59990/original/693y4pb9-1411618715.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=889&fit=crop&dpr=1 600w, https://images.theconversation.com/files/59990/original/693y4pb9-1411618715.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=889&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/59990/original/693y4pb9-1411618715.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=889&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/59990/original/693y4pb9-1411618715.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1117&fit=crop&dpr=1 754w, https://images.theconversation.com/files/59990/original/693y4pb9-1411618715.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1117&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/59990/original/693y4pb9-1411618715.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1117&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Arrested Development (2003)</span>
<span class="attribution"><span class="source">MoviePosterDB</span></span>
</figcaption>
</figure>
<p>It’s also why, until recently, you could go months before you saw hit US television shows and movies: the studios windowed the content to extract the maximum value from each geographical region.</p>
<p>Consumers fought back – geographical segmentation tends to get people hot under the collar – and various technologies of various levels of legality have emerged over time. Region-free DVD players, VPNs, and even illegal streaming sites can be seen as consumer responses to geographical segmentation. </p>
<p>The content industries have viewed each of these responses with both suspicion, <a href="http://en.wikipedia.org/wiki/Universal_City_Studios,_Inc._v._Reimerdes">and sometimes litigation</a>.</p>
<h2>The right to bypass geoblocks</h2>
<p>The proposals in the report by the Competition Policy Review are therefore extremely significant. </p>
<p>They are built around concerns that the law is used by copyright holders to <a href="http://www.choice.com.au/consumer-action/consumer-protection/digital-rights-copyright/have-you-been-locked-out.aspx">price gouge Australian consumers</a> as well as troubling evidence that <a href="http://theconversation.com/brandis-leaked-anti-piracy-proposal-is-unrealistic-29709">Australian consumers lack choice</a> in film and television, face delays in accessing content, and generally feel ripped off by distributors of international content.</p>
<p>Unlike the approach in Canada, where it seems <a href="http://www.budget.gc.ca/2014/docs/plan/ch3-4-eng.html">the law will be changed</a> to forbid copyright-based price discrimination, the Australian Competition Review’s preferred approach is to amend the Copyright Act to make clear that consumers have the right to bypass geoblocks, and also have the government allow and even educate consumers about how to bypass these geoblocks. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/59983/original/37trx4f6-1411617119.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/59983/original/37trx4f6-1411617119.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/59983/original/37trx4f6-1411617119.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/59983/original/37trx4f6-1411617119.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/59983/original/37trx4f6-1411617119.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/59983/original/37trx4f6-1411617119.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/59983/original/37trx4f6-1411617119.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/59983/original/37trx4f6-1411617119.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Dascha Polanco as Dayanara Diaz in Orange Is The New Black, another Netflix release.</span>
<span class="attribution"><span class="source">Foxtel</span></span>
</figcaption>
</figure>
<p>The report also endorsed the Australian Competition and Consumer Commission’s (ACCC) observation that the reality of consumers bypassing geoblocks has led to reduction in prices and to release of content at the same time as overseas markets. </p>
<p>The report also adopted much of the <a href="http://www.aph.gov.au/parliamentary_business/committees/house_of_representatives_committees?url=ic/itpricing/report.htm">July 2013 report</a> of the House of Representatives Standing Committee on Infrastructure and Communications into IT pricing in Australia, which recommended changes in the Copyright Act to improve competition. </p>
<h2>Government contradictions</h2>
<figure class="align-left zoomable">
<a href="https://images.theconversation.com/files/59993/original/92qfcdhk-1411619871.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/59993/original/92qfcdhk-1411619871.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/59993/original/92qfcdhk-1411619871.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=888&fit=crop&dpr=1 600w, https://images.theconversation.com/files/59993/original/92qfcdhk-1411619871.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=888&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/59993/original/92qfcdhk-1411619871.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=888&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/59993/original/92qfcdhk-1411619871.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1116&fit=crop&dpr=1 754w, https://images.theconversation.com/files/59993/original/92qfcdhk-1411619871.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1116&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/59993/original/92qfcdhk-1411619871.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1116&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">The Lego Movie poster (2014).</span>
<span class="attribution"><span class="source">MoviePosterDB</span></span>
</figcaption>
</figure>
<p>There are a number of weird ironies here. The most obvious is that three agencies of the Australian government – the ACCC, the Competition Policy Review Panel, and the House of Reps Committee on Infrastructure and Communications – are recommending the exact opposite of the sort of copyright reform the government <a href="http://www.ag.gov.au/Consultations/Documents/Onlinecopyrightinfringement/FINAL%20-%20Online%20copyright%20infringement%20discussion%20paper%20-%20PDF.PDF">rushed into headlong just a few months ago</a>. </p>
<p>These groups argue for weaker, not stronger, copyright laws, in the interests of Australian consumers. </p>
<p>The more-subtle-but-more-important irony is that these government bodies are endorsing copyright infringement. They are careful not to say this directly, but nonetheless it’s true. </p>
<p>Bypassing geoblocks is probably a copyright infringement under the current law, and streaming content from a pirate site definitely is. But it’s these actions which have placed the pressure on content distributors and have made it hard for them to charge as much as they once did, and to continue delaying Australian releases. </p>
<p>Village Roadshow co-chairman Graham Burke noted that holding back the Australian showing of The Lego Movie (2014) was a disaster for them. “No more,” <a href="http://www.smh.com.au/federal-politics/political-news/turnbull-admits-unanimous-opposition-to-copyright-law-proposal-20140910-10ethp.html">he told</a> participants in a recent forum, promising to release on the same day and date as in the United States. Mr Burke was careful not to mention that this pressure came from illegal streaming of the movie.</p>
<p>Harper’s report casts a new light on how copyright costs Australian consumers. It is just the latest entry in a long list of attempts to reform a Copyright Act that no longer works for many Australians. </p>
<p>The government has said it will go back to the drawing board and work out a way to fix copyright, in a way that balances the interests of all stakeholders. </p>
<p>Good luck with that.</p><img src="https://counter.theconversation.com/content/32092/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Dan Hunter does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>It’s been an interesting month in Australian copyright law. A couple of weeks ago, Communications Minister Malcolm Turnbull announced that the government’s proposed reforms to strengthen copyright were…Dan Hunter, Dean, Swinburne Law School, Swinburne University of TechnologyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/316982014-09-15T12:53:40Z2014-09-15T12:53:40ZMan Utd’s tablet ban is shrewd business that others may copy<p>Manchester United supporters lucky enough to see high-profile signings Radamel Falcao and Angel di Maria in action for the first time at Old Trafford at the weekend may have done well to remember we look with our eyes and not our hands. Or fingertips, to be specific. In an age where no experience is complete until we’ve recorded and uploaded it onto social media, fans may have been frustrated not to share their joy online. And the club’s <a href="http://www.bbc.co.uk/sport/0/football/29198247">first win of the season</a> provided them with many a photo opportunity. </p>
<p>But that reminds us, United have added tablets to their list of items banned from being brought into the stadium. The club is keen to emphasise that the measure is to ensure the “safety and security of all spectators”. But the ban makes shrewd business sense and it’s likely that other clubs will follow suit.</p>
<h2>Security and copyright fears</h2>
<p>There has been speculation that the club had growing concerns that supporters were <a href="http://www.independent.co.uk/sport/football/premier-league/manchester-united-ban-ipads-and-tablet-devices-from-old-trafford-9664348.html">recording large portions of their matches</a>. United distanced itself from <a href="http://www.telegraph.co.uk/sport/football/teams/manchester-united/11027601/Manchester-United-ban-fans-from-bringing-iPads-and-other-tablets-into-Old-Trafford-this-season.html">reports that</a> “fears over copyright” provoked the ban. </p>
<p>Instead, they highlighted the “continued safety and security of all spectators” claimed it was reacting “in line with UK airports to the latest security intelligence” in their <a href="http://www.manutd.com/en/Tickets-And-Hospitality/Tickets-And-Hospitality-News/2014/Aug/Prohibited-Items.aspx?pageNo=1">official statement</a> on the matter. </p>
<p>The coincidence with heightened security measures at airports is perhaps <a href="http://www.wired.co.uk/news/archive/2014-08/12/manchester-united-bans-tablets">a happy one</a> for United. There’s reason to believe that the decision was made for less altruistic reasons than the safety of others. Media lawyer Steve Kuncewicz pointed out to us that the timing of Utd’s decision also coincided with the Premier League’s attempts to <a href="https://theconversation.com/the-premier-leagues-video-clampdown-is-another-struggle-to-monetise-social-media-30591">clamp down on supporters posting unofficial match footage online</a>. </p>
<p>So, while there may be some security concerns, the bigger picture is that United are probably setting out to protect their broadcasting rights by banning technology they consider to be more capable than smart phones of filming their games (most smart phones have not been banned). </p>
<p>Citing breach of copyright and intellectual property, the Premier League’s director of communications Dan Johnson has <a href="http://www.bbc.co.uk/newsbeat/28796590">warned fans</a> against recording and sharing content that in June 2012 BT and Sky Sports paid over £3 billion for exclusive broadcast rights from 2013-16.</p>
<p>Add to this News International’s reported £30m UK rights package to show nearly live clips on its newspaper websites, tablets and mobile devices for the same period. It means that upstart video sharing websites such as FootballVines – the most popular attracting nearly 230,000 loops and counting – may be on borrowed time. </p>
<p>While the Premier League has announced it is developing technologies such as gif and Vine crawlers, and “working with Twitter to look to curtail this kind of activity”, it is also in discussions with News International’s legal team. As Kuncewicz commented:</p>
<blockquote>
<p>I expect those with a global brand will fiercely protect their rights. Particularly those clubs with more to lose in terms of their commercial interests, such as Chelsea and Arsenal.</p>
</blockquote>
<h2>Legal ramifications</h2>
<p>So what are the implications for individuals flaunting the law? Highlighting a lack of UK cases to draw upon, Kuncewicz looks across the Atlantic for potential precedents, such as the <a href="http://www.bbc.co.uk/news/technology-28418449">Michelle Phan case</a>. A YouTube entrepreneur, she is being sued by Ultra Records for £55,000 for each of the 50 songs she used in her YouTube videos.</p>
<p>But Kuncewicz said: “The ramifications in the US are more strict than in the UK. In the US you can be sued for punitive damages which deter defendants and others from doing the same again. In the UK, the legal ramifications are much less and would be aimed at recouping license fees and profit made.”</p>
<p>The Premier League appears to have softened its stance, after initial suggestions it would take legal action against supporters found to be breaking copyright law. Indeed, there is a fine line between brand protection and averting a PR disaster. Kuncewicz predicts “a massive backlash” should the Premier League or a football club start suing its own supporters for breaching copyright. </p>
<blockquote>
<p>The Premier League and its clubs have better things to invest their time and money on than suing their own supporters. It is possible that they would want to make an example of someone in order to set a precedent, but that would more likely be aimed at someone making a profit from it and posing most threat to their commercial interests. </p>
</blockquote>
<p>A change in copyright law next month could blur the boundaries further, providing a possible legal defence for football fans posting match action, including goals, to social media accounts. They will be adjusted to allow “more flexibility in the law and the concept of fair dealing”, according to Kuncewicz.</p>
<blockquote>
<p>If a fan or citizen journalist records a portion of a match for the purposes of education, news reporting or criticism, and this is not for profit, clearly linking back to the owner, then this could provide some defence.</p>
</blockquote>
<p>That being the case, Manchester United’s “security fears” and subsequent tablet ban might appear as a shrewd, if not entirely sincere, move.</p><img src="https://counter.theconversation.com/content/31698/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Manchester United supporters lucky enough to see high-profile signings Radamel Falcao and Angel di Maria in action for the first time at Old Trafford at the weekend may have done well to remember we look…Alex Fenton, Lecturer in Digital Business, University of SalfordDavid Randles, Lecturer in Online and Sports Journalism, University of SalfordLicensed as Creative Commons – attribution, no derivatives.