Australian tech start-ups stand to lose out in proposed copyright reforms



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YouTube and Facebook are protected from Australia’s copyright laws, since they already operate within the US safe harbours.
from www.shutterstock.com

Kylie Pappalardo, Queensland University of Technology

The Australian government quietly introduced the Copyright Amendment (Service Providers) Bill 2017 to the Senate on Wednesday. If enacted, the bill will extend the scope of Australia’s copyright safe harbours – very slightly.

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

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


Read more: It’s time to future-proof Australia’s copyright laws for the 21st century


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

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

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

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

Low hanging fruit

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

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

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

What are the copyright safe harbours?

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

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

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

Why are Australian safe harbours so limited?

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

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

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

What’s changing?

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

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

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

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


Read more: Australian copyright laws have questionable benefits


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

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

Why not extend the safe harbour to Australian innovators?

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

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


Read more: Explainer: what is ‘fair dealing’ and when can you copy without permission?


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

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

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

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

The ConversationAnd, 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.

Kylie Pappalardo, Lecturer, School of Law, Queensland University of Technology

This article was originally published on The Conversation. Read the original article.

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Australia’s copyright reform could bring millions of books and other reads to the blind



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Rule change should make it easier for more copyright works to be made available in Braille.
Chinnapong/Shutterstock

Nicolas Suzor, Queensland University of Technology

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. The Conversation

The Copyright Amendment (Disability Access and other Measures) Bill was introduced to Parliament on Wednesday.

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 DAISY audio.

The Australian Human Rights Commission has long been calling for action to end the “world book famine” – 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.

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.

Technology should make accessibility much easier, but publishers have been slow to enable assistive technologies.

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.

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 allowed them to disable the feature. Apple’s electronic books are much better, but there are still major gaps.

Our research looked at books available through electronic academic databases, and found that most ebook libraries have some features that frustrate full accessibility.

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. Research shows that even students in resourced universities have trouble accessing the materials they need to study.

A fair right for people with disabilities

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.

This is a major milestone in making copyright law more fair. It implements Australia’s obligations under the Marrakesh Treaty, a landmark international agreement designed to stop copyright getting in the way of accessibility.

The Marrakesh Treaty, once implemented around the world, will enable organisations to share accessible books to the people who need them in other countries. 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.

Once the laws are clarified, the accessibility of books will increase dramatically. Google has been busy digitising the world’s books, and it has given those books to a charity called Hathi Trust. Soon, Hathi Trust will be able to share those books with blind people around the world.

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%.

A missed opportunity

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.

When Australia signed the Australia – US Free Trade Agreement, 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.

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.

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.

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.

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.

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.

Professor Kim Weatherall explains the drafting error in Australia’s copyright safe harbours.

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.

The extension of these safe harbours has become highly politicised, with major rightsholders warning that it looked like a win for Google and Facebook.

The past two decades of the internet in the United States have shown how critical the safe harbours are to all developers, both large and small. They reduce uncertainty and allow innovation in the ways that people access content.

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.


Tess Van Geelen, a Research Assistant at the Faculty of Law, Queensland University of Technology, contributed to this article.

Nicolas Suzor, Associate professor, Queensland University of Technology

This article was originally published on The Conversation. Read the original article.

Australian copyright reform stuck in an infinite loop


Kathy Bowrey, UNSW Australia

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.

Malcolm Turnbull’s “ideas boom”, his innovation and science agenda, is supposed to make innovation happen by spending A$1.1 billion over four years. 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.

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.

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.

Headed up by UTS Professor Jill McKeough, the Australian Law Reform Commission’s Copyright and the Digital Economy Inquiry undertook an exhaustive process to produce this final report.

Brandis sat on the final report for some time, tabling it in Parliament on February 13, 2014. The day after he gave a speech where he agreed with the problems highlighted in the report:

“The Copyright Act is overly long, unnecessarily complex, often comically outdated and all too often in its administration, pointlessly bureaucratic.”

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.

The Productivity Commission inquiry into Australia’s intellectual property system 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”.

However successive governments have negotiated away many areas of Australian IP policy in international agreements, beginning with Chapter 17 of the 2005 the US-Australia Free Trade Agreement, and more recently the 2015 Trans-Pacific Partnership. 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.

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 issues paper 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?

Among the raft of government business hidden in the Christmas break an Exposure Draft 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.

The background paper to the Exposure Draft notes:

“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.”

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?

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.

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?

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.

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.

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.

The Conversation

Kathy Bowrey, Professor in Intellectual Property Law, Faculty of Law, UNSW, UNSW Australia

This article was originally published on The Conversation. Read the original article.

‘The Reformers and Their Stepchildren,’ by Leonard Verduin


As readers of this Blog would know, I have been reading ‘The Reformers and Their Stepchildren,’ by Leonard Verduin. I have now completed this book and maintain that this is a book that should be read by all Reformed believers. It is a brilliant treatment of both the Reformers and those who sought a more ‘radical’ reform, in order to bring the church back to that which was modelled on the New Testament example.

Verduin deals with many of the disputed areas between the Reformers and the Stepchildren, and in so doing shows how the Reformers chose to go only so far in their work of reformation and indeed how some chose to back peddle in some areas. As much as I respect many of the Reformers (if not all), I have always been saddened by their refusal to fully reform the church/separate from it, and to set up a church based on the New Testament model, which was something the stepchildren also sought. The Reformers treatment of the stepchildren will always be a blight on their legacy also.

Read this book without being biased either way and allow the truth of the Scriptures to determine the path on which you walk. There is much food for thought in this book and a real challenge for Reformed believers throughout.

‘Reformers and Their Stepchildren,’ by Leonard Verduin – An Update


 

As visitors to ‘At the BookShelf’ would know, I have been reading ‘Reformers and Their Stepchildren,’ by Leonard Verduin. I have now started chapter four and progress through the book may appear slow and you may think this is a reflection on the quality of the book. That would be a mistaken assumption however.

In reality I am finding the book a brilliant treatment of the differences between the ‘partial reformers’ (such as Luther, Calvin, Zwingli, etc) and the more ‘radical reformer’ who sought a complete transformation of the church to that which more accurately reflected the New Testament model.

The ‘slowness’ of my reading is more a reflection of my reading half a dozen or so books at the same time. Reading so many books at any given time is fairly normal for me – in fact, I would call normal (for me) reading far more books at any given time, but I am trying to reign myself in a little here. I just love reading – I am a bibliophile and bookworm remember 🙂

The third chapter of Verduin’s work has to do with the lack of true church discipline in the churches of the Reformers and their indifference (generally speaking) to ungodliness in the church (remembering that their churches basically included all in a given location or region).

The third chapter presents a very clear case of the real time contradiction of the Reformers and the reform they were bringing to bear on such places as Geneva, Zurich, etc. To a large extent their work of reform didn’t go anywhere near far enough to satisfy their ‘stepchildren,’ who when they tried to go further were branded as heretics, with their efforts at a more thorough reform being identified by the reformers as evidence of their heresy.

It is a very engaging chapter I believe and one that is helpful for shedding light on Christianity even to this day.

‘The Reformers and Their Stepchildren,’ by Leonard Verduin


I have been reading ‘The Reformers and Their Stepchildren,’ by Leonard Verduin, in the last week or so. It is not the first time that I have read this book, having read it some time ago – probably 10 years ago now I would say.

This is a book that I would recommend to any believer, but particularly to a Reformed believer, whether he be Paedobaptist or Baptist. Verduin seeks to analyse the Reformation and the relationship between the Reformers and their ‘stepchildren’ from a Biblical standpoint, rather than any particular denominational standpoint. Though he does defend the stepchildren, he does so only when they are in line with Scriptural teaching on the point being discussed within that particular chapter.

Who are the stepchildren? The stepchildren or the ‘second front,’ as Verduin also describes them, are those believers who sought a complete reforming of the church. In fact, it may be fair to say that these believers sought a complete break from the Romish church, and a new church built on the teachings of Scripture and modelled on the New Testament church alone.

The frustration for these nonconformist believers was that the reform movement only went so far and did not result in the complete renewal that they desired and that the situation required.

Thus far I have read only the first two chapters of the book and once again I am finding it a very worthwhile read. I find myself in substantial agreement with the position of many of the stepchildren and with Verduin. With as much respect as I have for the Reformers, such as John Calvin, Martin Luther and John Knox, I too would have found myself frustrated at the level of reform achieved by them (though they were better men than I). A complete break and renewal would have been the way forward I believe.

The first two chapters deal with the joint secular-religious church-state that was set up at both the time of Constantine and then at the Reformation in the various Protestant nations that embraced the Reformation. They deal with the all-embracing religion that was constructed in such centres as Geneva and the ‘unified’ approach to it, as well as the reaction of the stepchildren and their withdrawal from it.

This book is as close to a must read for believers as there is I think – especially of the Reformed persuasion.

My copy of the book (paperback) is by William B. Eerdmans Publishing Co. and was printed in 1964.