[Linux-aus] (Urgent) Digital Agenda Act Review - Online Forum

[Anthony Towns]

On Mon, Sep 15, 2003 at 07:33:08AM +1000, Pia Smith wrote:
> On Mon, 2003-09-08 at 16:55, Anthony Towns wrote:
> > The Digital Agenda act was Australia's equivalent to the DMCA. It was
> > enacted with a clause requiring it to be reviewed within three years;
> > that review started in April this year. Last Thursday there was a
> > public meeting in Sydney for people to make any points they wanted to,
> > and there was a similar event in Melbourne in August. There's an online
> > forum *tomorrow* (Tuesday, 9th Sep), and written submissions are due by
> > the end of the month.
> How did this go?

Archives are at http://your.phillipsfox.com.au/digitalreview/

The format was:

	Libraries, etc
	ISP liability
	Technology and Rights
	TPM, Circumvention devices and RMI
	General discussion

There were a bunch of people from Phillips Fox and the Attorney General's
department observing; there weren't a great number of folks in attendance.

A quote from the 2pm forum to get us started:

	> One thing's not quite clear to me: are we focussed on describing
	> problems (working out what they are, and showing that they
	> are problems) or finding solutions to them, or both in this
	> review? I'm finding it a little difficult to focus my responses.

	We are interested in both problems (or issues) and potential
	solutions to those problems.

	Many of the issues have been identified, and discussed. However,
	very few solutions have been canvassed.

		-- comments from Matthew Hall, partner at Phillips Fox
		   conducting the review, in response to a question from
		   me

In more detail:

The libraries topic didn't get much response at all. (It doesn't cover
online stuff, just real libraries, and no one who was on at the time
seemed particularly interested; Matthew Hall speculated that they'd
probably already said what they wanted at the previous public fora)
From that session:

	It is difficult for us to know who has an interest ... the forum
	has been publicised by us and the Department. By all means,
	if you know anyone that might be interested, please invite them
	to participate.

	The big issue in our feedback so far, from publishers and
	authors, is that a library is allowed to create a digital copy
	from a hardcopy. That copy will not have any rights management
	information attached. Do you have any comments on this?

		-- comments from Matthew Hall, partner at Phillips Fox
		   conducting the review

ISP liability (or ISP indemnities) was a bit more active. This is about
working out what ISP's have to do to ensure they aren't liable for
copyright violations that are due to the actions of their usables; and
what assistance they're expected to offer to people persuing copyright
violations. The discussion seemed to be mostly in favour of producing a
code of conduct for ISPs, and getting some ideas on how that shoul dbe
administered.

	... an indemnity may need to go further than just ISPs. If
	an owner is prepared to give an indemnity in respect of any
	damage that flows from complying with their take down request,
	then that may alleviate many concerns. It would be equivalent
	tot he undertaking they would have to give if they sought
	an injunction. It may also mean greater care would be taken
	before issuing a demand. An issue is whether this indemnity
	should be provided by the legislation or covered in a Code of
	Conduct? Thoughts?

		-- Matthew Hall

	... I think it is also important to distinguish between an
	ISP's role as 'carrier' of data, versus their role as a 'host'
	for data. In the former case, I think ISP's should not be held
	liable for the actions of their users (IMHO); in the latter
	case I think ISP's probably do have a responsibility to act when
	material is being hosted by them in violation of copyright.

		-- Raymond Smith

	> Page 14 of the issues paper suggests the ISPs will
	> be caught in the middle with both take-down and put-up notices
	> possible. The copyright holder wants the material gone and the
	> customer wants the material there. Are ISPs in a position to
	> recover costs?
	Excellent point. To consider this further, we would appreciate
	data on the additional costs that are likely to be incurred by
	this process. This can be done in a written submission.

		-- Matthew Hall in response to Mark Suter

Rights and technology issues is the most interesting issue in my book:
it covers the more fundamental question (IMO) of which copies should
"count" as far as copyright violations. There's already an exemption for
copies that aren't "in material form" and temporary copies made as part
of the technical process of accessing a work, this covers whether those
exemptions and others work, and whether they're enough. Of interest
is that there's apparently been no responses at all wrt the reverse
engineering clauses (being allowed to fix Y2k bugs without the copyright
owners assitance, decompilation, etc).

	> The review includes issues in respect of the computer
	> software amendments made in 1999. The issues raised include
	> the exceptions to infringement allowing reprroduction of code
	> in certain circumstances and the incidence, treatment or effect
	> of orphaned or abandoned code.
	>
	> No comments were made about these issues at the face to
	> face fora. Does this mean that the amendments are working
	> effectively? Does anyone have any views?

	(I think this is referring to the reverse-engineering stuff --
	fixing bugs for Y2k and that sort of thing)

	I think the amendments are working effectively; I'm not aware
	of any litigation about it, and I believe most of the people
	interested in this area feel fairly confident in that what
	they're doing is legal.

		-- me in response to Matthew Hall

	> With regards to ISPs caching files for faster access, it
	> definitely creates greater efficiencies. End users are able
	> to download files faster and reducing costs for the ISPs due
	> to less repeated accesses. This should not adversely affect
	> owner's interests if it is done transparently to the user and
	> only stored temporarily. However, I can see that problems may
	> arise if works are permanently saved in a locally accessible
	> point, outside the context of the owner's site. For example,
	> if an entire site is downloaded so that users no longer need to
	> access the original location.

	any information that you have (or that others may have) about
	actual savings or other efficiencies (in a written submission)
	would be helpful.

		-- Matthew Hall in response to taufiqkh

	> For example, if I purchase a CD, encode the tracks as sound
	> files (og vorbis, mp3, etc) on my computer and then listen to
	> the music on my computer, how do we make this legal?

	Why do you say that this activity should be legal? How does this
	activity not affect an owner's interests? Why should the balance
	of competing interests favour this format shifting?

		-- Matthew Hall in response to Mark Suter

	Some of the discussion regarding what should and should not be
	legal would potentially be caught by a more generalised fair
	use exception, based on the US approach which is not limited in
	application to specific purposes. It's fair use that has allowed
	time-shifting copies in the US (the old Universal v Sony "betamax"
	case). If we had a broad fair use doctrine in Aust, it would be
	flexible enough that the courts could apply the provision to
	excuse "copies" made in many socially/economically desirable
	situations. But for now, the reality is that when we record a
	TV program to watch later, or copy a CD to tape for listening
	to in the car, we breach copyright. Silly really.

		-- Jamie Wodetzki	

	Do you have any further comment on what are, or should be,
	"socially/economically desirable situations" and any data to
	support any suggestion that a situation is economically desirable?

		-- Matthew Hall in response to Jamie Wodetzki's remarks above

The TPM session was, unsurprisingly, a bit more confrontational.

	As a consumer, what has me caused great alarm in the marketplace
	is the introduction of Copy Control software on Retail CDs.

	In my experience of using this software, where it irrevocably
	installs onto PCs which you play the CDs from, causing the
	PC to crash, when some other retail CDs are played. This is a
	particularly annoying issue, and I hear that this technology
	has not been introduced to the US market, in fear of legal
	repercussions from affected users.

		-- Kieren Reynolds (via Matthew Hall)

	Do you support the inclusion of fair dealing as a permitted
	purpose for the supply of a circumvention device?

	In addition to any comment about the extension of permitted
	purposes, is there any comment about any concern of owners seeking
	to prohibit by contract the use of circumvention devices to make
	a fair dealing of a work?

	This goes more to the issue of the definition of a tech protection
	measure. Do you have any suggestions as to how that definition
	can be modified or clarified to take into account your concerns?

	Do you have any examples to demonstrate that copy protection is
	failing in controlling piracy in Australia?

		-- Matthew Hall (in various posts)

	I just wanted to say that the anti-circumvention laws are
	essentially very new and still yet to be fully understood. One
	thing is certain: there is no case for extending these
	provisions further without the evidence to support the need
	for such action. And as your issues paper rightly points out,
	the evidence is very thin on the ground.

		-- Jamie Wodetzki

	> And if removing the region lock on your dvd player is illegal,
	> does this mean it's illegal to view websites that tell you how
	> to remove it? Is reading about circumventing copy protection (not
	> that I consider dvd region codes to be legitimate copy protection)
	> as illegal as actually circumventing the copy protection?

	Supplying or manufacturing a circumvention device for that purpose
	is illegal, but the use of the deivce by an individual is not

		-- Matthew Hall in response to Sandra Milne

There were a few other issues raised in the general forums. I dislike
quoting myself, so I've tried to avoid it, but I'm sure I said something
worthwhile. As they say, read the whole thing.

> I'm afraid I simply could not make it, but it'd be very interesting to
> find out how it went, what was discussed etc?

	We look forward to receiving your written submissions.

		-- Matthew Hall

Cheers,
aj

-- 
Anthony Towns <aj at humbug.org.au> <http://azure.humbug.org.au/~aj/>
I don't speak for anyone save myself. GPG signed mail preferred.

Australian DMCA (the Digital Agenda Amendments) Under Review!
	-- http://azure.humbug.org.au/~aj/blog/copyright/digitalagenda
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