Copyright Reform for the Internet

The Australian Digital Alliance has released "Internet Intermediaries and Copyright: An Australian Agenda for Reform" (by Kimberlee Weatherall). This is a comprehensive 63 page study. Unfortunately it was released as a hard to read PDF file, so I have extracted the executive summary (appended). Also it is odd, given the subject matter, the report has no copyright notice:

Executive Summary

Digital Economy: the global network of economic and social activities that are enabled by platforms such as the Internet, mobile and sensor networks.¹

Australia aims to be a place where innovation in the Digital Economy happens.² Achieving this goal is essential to Australia"s future economic growth, productivity, and social well-being.³ It will require not just great digital infrastructure, and a population with the necessary skills and entrepreneurial spirit, but a legal environment conducive to investment in the technologies, products, and services that make up the Digital Economy.⁴

Copyright law is an important part of this legal framework. The goal of copyright law is to encourage the creation of artistic, intellectual, and scientific content, from books and datasets to movies, music, video games, software, and art, by granting to creators exclusive rights to exploit their creations. The creation of new content is an important part of a successful Digital Economy. But, as has been widely recognised, too much copyright protection (or too much intellectual property generally) "may discourage people from innovating because the pathways to discovery are blocked by other intellectual property owners".⁵

A critical set of actors in the Digital Economy who can be affected by over-broad copyright are the Internet Intermediaries. These are the companies that provide the basic infrastructure of the Internet, and that build and create the services and platforms of the Digital Economy. They include Internet Access Providers (IAPs), web hosts, the providers of online platforms for the creation and exchange of content (such as YouTube, WordPress, and Facebook) – and others perhaps not yet conceived. They are all "intermediaries" in the sense that they stand between customers or end-users, and originators of content or other material. They are not only direct participants in the Digital Economy, but enablers – they build the platforms and infrastructure that can enable other companies to innovate and to take advantages of the efficiencies of the online environment.

If Australia is to achieve its overall innovation goals, and fully realise the potential economic and social benefits of the National Broadband Network (NBN), it will need to ensure that its copyright law appropriately enables Internet Intermediaries to operate and to invest in creating Australia"s Digital Economy. It is difficult to determine in the abstract where the proper accommodation of competing interests in copyright lies. One guide is a comparison with similar countries – Australia"s competitors in the global Digital Economy.6 If Australia"s laws create a less conducive environment for a Digital Economy than the law of Australia"s competitors, this will put Australia at a disadvantage in attracting and retaining innovative digital companies.

Where Australia currently stands

Measured against other jurisdictions, Australia"s copyright law is both less coherent and less amenable to innovation in the Digital Economy. The present legal situation can be understood at a broad level using a basic "traffic light" metaphor: where RED means an activity involves a high risk of copyright infringement, ORANGE means the legal situation is unclear, and GREEN means a low or non-existent risk of copyright infringement (perhaps subject to the company fulfilling certain conditions, such as taking infringing material down on receiving notice).

Table 1: Summary Table: Risk of Copyright Infringement Activity

Table omitted

The legal reality in Australia is that fifteen years after the Altavista search engine was launched, a search engine can still not operate fully from Australia without facing a risk of copyright infringement. Five or six years after the launch of services like Facebook, YouTube and the WordPress blogging platform, the same applies to these Digital Economy companies and services. Current Australian law also creates an uneven playing field: carriage service providers face less overall legal risk than other Internet Intermediaries, even where they perform the same practical function.

Table 1 does not, however, give a full picture of the impact of copyright on innovation, for two reasons. First, it focuses on online activities that we already know about. Innovation is, by definition, doing new things. Doing what is now known – following on from existing, often foreign innovations – is not enough: Australia needs to generate new ideas that can take on the world. Creating the environment in which people can come up with these new ideas, and pursue them through to commercialisation, depends in part on ensuring the law provides some room to experiment.

Australian copyright law provides no such room. By contrast, US law provides two important flexibilities for Internet Intermediaries: the fair use exception, which allows for non- infringement based on a balancing of factors (like the impact of an activity on the market), and the ‘Sony doctrine" – the rule that a person who provides services or technology that has "substantial non-infringing uses" will generally not be held liable for its customers" infringements.

Solutions

To provide an appropriate legal environment to enable greater innovation in the Australian Digital Economy, two critical changes are needed.

Extend the Safe Harbours

First, Australia should extend its copyright Safe Harbours to benefit all online service providers.

Copyright and Internet Intermediaries: An Australian Agenda for Reform indeterminate legal risk. Extending the Safe Harbours would not, however, be sufficient to create a favourable environment for innovation, because entrepreneurs wanting to introduce new, unanticipated services and products would have little room to move.

Introduce a Flexible Exception into Copyright

Second, Australia should introduce a flexible exception into copyright, in order to promote innovation, create room for experimentation and move from a "permission to innovate" culture to one conducive to taking risks and trying new things, at least where the impact on copyright owners" economic interests is small. This could be done by:

1. Introducing an exception for fair dealing for the purpose of "transformative use" (or some variation); or
2. Introducing an open-ended fair dealing exception modelled on fair use as found in US copyright law; or
3. Introducing a new s 200AB-style semi-flexible exception (or expanding the operation of the existing s 200AB): for example, specifying Internet Intermediaries as another kind of entity that gets the benefits of being allowed to do activities provided they do not contravene the "three step test" in international law.

Of these, using s 200AB is the least desirable option due to its complexity. Options 1 and 2 are similar. Both would help ensure that Australian law properly enables the key technical processes that underpin the operation of the Internet and common online services, as well as ensuring that Australian law provides room for appropriate innovation to spur a thriving Digital Economy.

If Australia chooses not to introduce a new flexible exception, at the very least, Australia should introduce one or more new specific exceptions to address problems identified in this Policy Paper to allow known activities that do not unjustifiably harm copyright owners. To address the gaps identified in this Policy Paper, specific exceptions would be needed to allow at least:

1. Caching, including proxy and system-level caching;
2. Web Hosting (including Cloud Computing);
3. Hosting a User-Created Content Platform (with an exception to allow individuals to make user-generated content); and
4. Operating a Search Engine.

Some reform to address these activities, currently not allowed under Australian law, would be better than nothing, to at least enable local versions of known services online. However this would do little to encourage future innovation in the Australian Digital Economy.

Contents

Executive Summary .. 1
Where Australia currently stands . 2
Solutions 4
Extend the Safe Harbours .. 4
Introduce a Flexible Exception into Copyright 5
1 Background Material . 7
1.1 Terminology: who are the Internet Intermediaries? . 7
1.2 Exceptions in context: the scope of exclusive rights and secondary liability 8
2 The impact of the copyright law on common online activities 11
2.1 Providing network access (internet access providers) . 11
2.2 Caching . 14
2.3 Hosting Content . 19
2.3.1 "Traditional" Web Hosting 20
2.3.2 Cloud Computing .. 22
2.3.3 Hosting a User-Created Content Site . 23
2.4 Search Engines: Web Crawling, Indexing and Display of Results . 25
And then there"s the future 28
2.5
3 Advancing the Digital Economy: What Australia Should Do .. 31
3.1 Extend the kinds of entities entitled to Safe Harbours to all online service providers .. 31
3.2 Introduce a flexible exception into Australian copyright law .. 31
3.2.1 Option 1: Fair dealing for the purposes of transformative use .. 33
3.2.2 Option 2: A Fair Use/Open-ended Exception 34
3.2.3 Option 3: Extending 200AB 35
3.2.4 Assessing the options . 37
3.3 Specific amendments 38
4 Conclusion .. 39
Appendix 1: Australia's Digital Exceptions Compared .. 40
Introduction and Summary . 40
Exceptions to liability for (temporary) reproductions .. 41
Liability for transmission (communication) and exceptions .. 46
Summary and commentary on the exceptions covering basic digital and network technology
50
Appendix 2: Australia's Safe Harbours Compared 51
Appendix 3: Australia's Exceptions for Creative Re-use and Personal Copying Compared . 57
Creative re-use .. 57
Private copying . 62

...


From: Internet Intermediaries and Copyright: An Australian Agenda for Reform, Kimberlee Weatherall, Australian Digital Alliance, April 2011

Reform Agenda for Copyright

Greetings from "Policy Form: Righting the Copyright Imbalance", at the National Library of Australia, in Canberra.After "Orphan Works" Kim Weatherall, Senior Lecturer in Law, University of Queensland summarised the day. One point she made was ensuring that everyone concerned was "in the room" for discussions on copyright and also that public policy could be developed in a coordinated way.

It occurred to me that NLA provided a valuable public service for providing a forum for today's discussion. Last week I suggested in "Designing for Dialogue" the NLA be funded to have a centre for this purpose.

Orphan Works

Greetings from "Policy Form: Righting the Copyright Imbalance", at the National Library of Australia, in Canberra. After "Educational Online Copying", the last tpic for the day was orphan works. These are documents or other materials for which the copyright owner cannot be found.

One of the quirks of current Austrlaian copyright law is that orphan works remain copyright and effectively unusable indefinitely. Factors such as the the length of the copyright can be determined from when the work was published and when the author died. However, if the author is not known and the publication date is unclear, then the copyright can never be to be determined to have ended. Various ways around this were discussed in the forum, such as setting reasonable limits and having a collection agency act as the copyright owner.

It seems to me that the Galleries, Libraries, Archives and Museums (GLAMS), are in this case acting like the corporate publishers they normally criticise. The GLAMS want a law passed which retroactively gives them ownership of the orphan works. It seems to me that there are technical solutions, where the institutions automate the searches to find owners.

Educational Online Copying

Greetings from "Policy Form: Righting the Copyright Imbalance", at the National Library of Australia, in Canberra. After discussing the iinet case. I skipped the next session and went to browse the new periodicals in the main NLA reading room. This was more difficult than expected, as NLA have moved the periodicals racks again.

Delia Browne, Director, National Copyright Unit, Copyright Advisory Group of Austrlaian Schools talked in th next forum session on "Educational Online Copying". She made a passionate case for educational institutions to have access to online material for free, unless there is an indication a fee is payable.

The reason for schools having to pay for online material derives from the precedent of photocopiers. The problem is that when this approach is applied to online material, schools end up having to pay for material, such as ordinary web pages, which the owner didn't intend to charge for. CAGAS has been arguing the case for material which is provided freely online, not avialable commercially, with the copyright owner not expecting payment and not password protected.

It seems to me that CAGAS could look for technical solutions. It would be possible to create a system which would scan all the web pages in Australia and automatically determine the status of most of them. Where it was not clear if a fee was payable the system could attempt to contact the owner and ask.

It also occurs to me that this is an issue which will solve itself over time. The current problem is a hangover from the photocopier era, where the teacher had to make a copy to make a document avialable to the students. If the material is online and the student has access, then the teacher does not need to copy the material. Online content creation tools, such as Moodle and AContent could be modified to help with this. When an author attempts to copy something from the web into the system, it could automatically identify this, check the document is free online, is avialable in an archive and then replace the copy with a link. The author could be given the option of overriding the link and making a copy, after being warned this will cost money.

iinet Case

Greetings from "Policy Form: Righting the Copyright Imbalance", at the National Library of Australia, in Canberra. After discussing "Safe Harbours" in general, the forum move on to look at the iinet case in detail. This case was over if ISP iiNet Ltd, allowed illegal downloading of films, TV and music. The issue was if iiNet had taken reasonable steps to stop such downloads happening. This case is likely to do more to shape copyright law in Australia than any of the government inquiries under-way.

Anne Flahvin, Special Council, Baker & McKenzie, summarised the decision in the case. However, I couldn't understand the legal details.

Safe Harbours For Information Distributors

Greetings from "Policy Form: Righting the Copyright Imbalance", at the National Library of Australia, in Canberra. After morning tea in the surroundings of the National Library of Australia, the forum recommenced with a panel on "Safe Harbours".

Safe Harbours are legal provisions to protect those who help distribute information but don't have much control over it, such as ISPs and telecommunications companies.Under the Telecommunications Act 1997 such organisations are protected from legal consequences (such as breech of copyright) from what their customers do. The issue is if this protection should be extended to universities and libraries.

Ishtar Vij, Public Policy and Government Affairs at Google Australia spoke first. Google are in fvour of Safe Harbours so they can distribute materials online.

Tom Joyce, Copyright Lawyer for Unviersity of Queensland spoke next. I could not work out from what he said what the UQ's position was, but I assume it is in favour of them being a safe harbour.

Paula Bray, Visual and Digitisation Service, Powerhouse Museum pointed out they have to take risks with copyright in order to make materials avialable to the public. They had a "hack day" on how to make use of their open photo archive. Clearly they would benefit from Safe Harbours protection.

There does not appear to be any contrary view on the panel, not making for a very exciting discussion.

One point I don't agree with is that one speaker commented that "take-down notices" under the safe harbour legislation have to be "signed" and therefore could not be sent electronically. This did not seem correct to me as it is possible to legally sign an electronic document.

Righting the Copyright Imbalance

Greetings from "Policy Form: Righting the Copyright Imbalance", 4 at the National Library of Australia, in Canberra. This is a one day event organised by the Australian Digital Alliance, which is in effect a lobby group of libraries and educational institutions worried that publishers will limit their access to digital materials. The ANU is a member of the ADA, so I took the opportunity to come along and find out about the issues, but I don't know if the ANU has a position, nor am I here to put that position.

The title of the forum is ‘righting the imbalance of copyright law’, which clearly pits the ADA's position. There is Background Information for the forum and a list of ADA Submissions with details. The first speaker is Helen Daniels from the Attorney-General's Department. She has set the scene by mentioning the numerous international copyright agreements which limit what Australia can do. There are also legal disputes under-way which might require legislative intervention. There are also Australian Government initiatives still being bedding in, such as the decision to release government documents under a Creative Commons licence.

I am not a lawyer, nor a copyright specialist, more someone who helped create the problem by fostering use of electronic publishing. It is interesting to see how some of the consequences of this technology, which has been under development for decades, are still being worked out.

At question time the issue of the government use of creative commons was raised. In my view there is a problem for the government caused by the Attorney General's Department failure to finalise guidelines on its use. This is of interest as I am running a course for public servants on how to implement such policies (COMP7420: Electronic Document and Records Management). In the absence of clear guidelines, I will have to get the students to write them.

I will make further postings as the day progresses.