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Copyright
by Chris Yuan
Copyright is a set of exclusive rights granted to the creator of an original work that protects
the creator’s expression of ideas, not the ideas themselves. It covers a variety of things such
as films, TV broadcasts, sound recording, programs, published works and radio broadcasts.
Protection in Australia is provided under the Copyright Act 1968 and gives exclusive rights
to license others in regard to copying the work, performing it in public, broadcasting it,
publishing it and making an adaptation of the work. Because it is federal law, protection
goes out across all of Australia, even if the material was created overseas. In addition to
dealing with copyright rights, the Act also deals with performers’ rights and the “moral
rights” of individual creators.
Protection also extends to signatories of several international treaties, such as the Treaty of
Berne. With advances in technology (such as peer to peer networking), many aspects of
copyright are not only getting outdated but new methods have found ways to easily copy
and transfer copy righted material, especially over the internet, and thus law reform has
been introduced in many different areas.
Impacts of Technology on the Individual
There are a number of situations in which copyrighted material can be used without permission
from the original creator but these are usually very narrow and specific.
The most common exception is that of Fair Use, as noted Division 3-7 of the Copyright Act 1968
(Acts not Constituting Infringement of Copyright in Works). Material may be used in “fair
dealings” regarding research, study, comments/criticism, reviews, news, more recently (due to
law reform), parody or satire, fair use broadcasting, reproduction of works for private use and
reconstruction. As seen, the main ‘grey area’ making it difficult to enforce copyrights relies upon
the terms ‘fair use’ and ‘private use’. With the rise of computer technology and the ability to
photocopy etc, an increase of breaching of copyright can be attributed to ‘fair use’, although it
in getting increasingly difficult to prove that the actual intent was indeed ‘private use’.
Copyright owners and broadcasters sometimes use technology to try to protect digital material
from unauthorised access or use (for example, by encrypting material or encoding broadcasts)
and in some cases, copyright owners also use technology to identify and monitor digital copies
of their material (electronic rights management information) and such sometimes Privacy issues
due to this technology may come into play. However under the Copyright Act, copyright owners
can take action against people who circumvent technological measures which control access to
copyright material. Action can also be taken against people who make, sell, import or rent out
devices which are used to circumvent technological measures and against people who provide
circumvention services, as well as people who remove or alter electronic rights management
information.
Individuals must now be sure that someone offering a service of any sort is not offering
circumvention, and now whether or not that person has in fact been given permission or
bought/’borrowed’ permission from the original owner.
As technology advances, the Act has now been interpreted to regard the actual dealings
commercially regarding circumvention devices and software. A number of these offences were
recently amended as a result of the Free Trade Agreement with the United States.
Another big impact on the individual is that of Piracy/copyright infringement. With the rise of
peer-2-peer capabilities and file transfer, the amount of online piracy has increased
exponentially, with torrents, file downloads and free music taking precedent over CD’s etc.
Furthermore, it was increasingly difficult to track these downloads due to the amount of
surveillance needed, ‘fair use’ as well as the difficulty of tracking transfers between two
individual private parties. The self acclaimed “largest torrent site on the internet” The Pirate Bay
is a site that offered the downloading of ‘torrents’ which allowed peer to peer transfers of many
files, some copyright protected. As such, they were sued by a group of prosecutors lead by
MPAA (Motion Pictures Association of America). The charges included the ‘reproduction of
copyrighted material’ as well as ‘the encouragement of copyright infringement’. Because of
difficulties proving the first charge, it was dropped within a day. However the prosecutors
insisted that the Pirate Bay was intentionally and knowingly allowing access to this copyrighted
material such as movies, music and videos. The Pirate Bay claimed to be like a search engine
and thus the ones guilty were the millions of individuals downloading the copyrighted material.
They were found guilty, fined and sentenced however they appealed the decision and a final
verdict is yet to be reached. File sharing researcher/professional Daniel Johansson called this the
most important ruling since Napster, as well as the expectation of future law reforms to deal
with the spreading of copyright protectable material.
Difficulties with enforcing Rights
Copyright doesn’t protect ideas, concepts, styles, techniques or information owned by the
individual, and as such ideas could be “borrowed” without infringement, unless, however, the
idea borrowed is a distinctive part of the work. The issue then arises as to where the line is
drawn between distinctive or not. Another issue would be locating the original, as an idea could
be in breach of copyright without the attention of the original author.
Proving who the original owner of the Copyright was is also very difficult and usually needs to be
resolved in court, relying heavily upon evidence regarding drafts and eyewitness. Such
difficulties are now usually rare, as provisions within the Copyright Act [Section 202 i]] allow the
owner of the copyright to charge the person who threatened the ownership.
As shown earlier, ‘fair use’ and ‘private use’ can be used as exceptions to copyright. This leads to
many difficulties in enforcing rights, as what defines fair use is not concrete, and it is very hard
to prove this ‘fair use’ especially over the internet.
A popular example can be seen with the influx of YouTube videos that contain music or audio to
back the video up, and as such YouTube has been made to change its copyright policies.
Videos were using audio that belonged to artists and, as such, belonged to the record
companies such as Universal Music. These companies have taken action and YouTube have been
forced to mute audio on many videos containing this music. However, users are now citing the
Copyright Act, stating that “allowance is made for 'fair use' for purposes such as criticism,
comment, news reporting, teaching, scholarship, and research. Fair use is a use permitted by
copyright statute that might otherwise be infringing. Non-profit, educational or personal use
tips the balance in favour of fair use”. As a result, they may use this music, claiming it for “fair
use” with only a reference to the song but whether or not fair use is intended is still never
certain.
Another rising problem regarding YouTube is the uploading of videos that are in breach of
Copyright. YouTube currently has over 12 billion videos, and some people are even uploading
full length movies. At the time of uploading a video, YouTube users are shown a screen with the
message "Do not upload any TV shows, music videos, music concerts or advertisements without
permission, unless they consist entirely of content that you created yourself”. Despite this
advice, there are still many unauthorized clips of copyrighted material on YouTube. YouTube
does not view videos before they are posted online, and it is left to copyright holders to issue a
takedown notice pursuant to the terms of the Digital Millennium Copyright Act.
Organisations including Viacom, Mediaset, and the English Premier League have filed lawsuits
against YouTube, claiming that it has done too little to prevent the uploading of copyrighted
material. Viacom, demanding $1 billion in damages claiming that it had found more than
150,000 unauthorized clips of its material on YouTube that had been viewed "an astounding 1.5
billion times". YouTube responded by stating that it "goes far beyond its legal obligations in
assisting content owners to protect their works". Since Viacom filed its lawsuit, YouTube has
introduced a system called Video ID, which checks uploaded videos against a database of
copyrighted content with the aim of reducing violations. In June 2010, Viacom's lawsuit against
Google was rejected in a summary judgment, the judge stating that Google was protected by
provisions of the Digital Millennium Copyright Act. Viacom announced its intention to appeal the
ruling.
Another case in August 2008, a court ruled in Lenz v. Universal Music Corp. that copyright
holders cannot order the removal of an online file without first determining whether the posting
reflected fair use of the material. The case involved Stephanie Lenz from Gallitzin, Pennsylvania,
who had made a home video of her 13-month-old son dancing to Prince's song "Let's Go Crazy",
and posted the 29-second video on YouTube.
Difficulty regarding copyright due to technology was the individual laws of different countries.
As technology and the Internet allowed fast transferring over vast distances, there were
conflicting Copyright laws and such the Berne Convention was introduced to “provide mutual
recognition of copyright between nation states, and to promote the development of
international standards for copyright protection.” Law reform regarding the Berne Convention is
discussed further on.
Future Directions – the role of law reform and Legal Implications
The speed of which technology is advancing is a constant problem for law, and it is practically
impossible to predict the advances and implications they have, and thus law is always reactive,
changing between these implications through the use of law reform.
Technology has undoubtedly made a significant impact on Copyright Laws. Before the Copyright
Act was developed, the Internet had not yet been created. However through the use of Case
Law and amendments, the law has begun to cover more materials in an effort to keep up with
technology.
The British Statute of Anne 1709 was the first statute law and only applied to the copying of
book, and the rise of technology lead to a significant impact on copyright laws themselves.
When the Copyright Act was first developed, the Internet had not yet existed. However, as
technology advanced and new forms of ideas developed, new developments and amendments
of the law lead to a wider coverage of materials.
The case of Computer Edge Pty Ltd. v. Apple Computer Inc. [1986] 161 CLR 171 took place when
computer technology was still being developed. Computer Edge had imported a computer to
compete with Apple’s latest computer. Apple claimed that the chips used in the new computers
had copied Apple’s chips, and the court ruled in Apple’s favour, and thus codes used in chips
were recognized as intellectual property.
The Australia-United States Free Trade Agreement (AUSFTA) is a preferential trade agreement
that came into force in 2005.
Until January 2005, copyright usually only lasted for 50 years after the death of the original
creator, however under the Free Trade Agreement with America, Australia agreed to extend this
to 70 years. The AUSFTA also saw a wider criminal provision for copyright infringement, seeing a
maximum of $60500 and 5 years in prison per offence per individual, incorporated to deter
people from infringement.
Reform was also seen regarding electronic rights management and the covering of a greater
range of productions. New moral and economical rights were also introduced, such as the ability
to take action if their work is falsely attributed as being someone else’s work or is altered by
someone else but attributed as if it were unaltered; and take action if their work is distorted or
treated in a way that is prejudicial to their honour or reputation.
With the rise of newer technologies especially over the internet has seen a greater availability of
bandwidth and storage. Combined with better tools to ‘rip’ media and copy, the Internet has
seen a sudden influx in file sharing sites and digital rights breaching, where users have been able
to share music and movies illegally, breaching copyright, as well as bypass these electronic data
protection. To further complicate matters, as mentioned earlier, it is hard to enforce rights
especially over the internet.
This is a clear example of how the Copyright Act incorporates law reform over years to
accommodate cases that were not even originally thought of when the Act was written.
However, the law has responded to these challenges and gradually, copyright is being reestablished. An example can be seen in Australia Performing Rights Association v. Telstra
Corporation Ltd. [1995] where Telstra had been using music recording when customers were on
hold without Copyright permission.
Another example is in the more recent case of Universal Music Australia Pty Ltd v. Sharman
License Holdings Ltd [2005] FCA 1242 was held in relation to the popular music sharing site
Kazaa, which offered its worldwide users free sharing of music files. 30 companies including
Universal Music Australia claimed Kazaa had breached copyright, allowing users to share movies,
music and other media; however Kazaa claimed that it had not allowed its users to breach the
copyright. After this dilemma, the plaintiffs argued that Kazaa was well aware that its users were
breaching copyright laws and an immediate injunction was granted to suspend Kazaa until it
took actions to ensure copyright was no longer breached.
This case marked an important milestone in the cracking down of many file-sharing sites
throughout Australia and the world.
Another event was that of RIAA v. Limewire. Limewire, one of the most popular peer-to-peer
programs on Gnutella, also offered file-sharing services and was sued by the RIAA for $75 trillion
(more than the entire global economy), claiming that each track downloaded was liable to the
$150,000 maximum per infringement (download). They settled out of court for $105 million.
The Copyright Amendment Act 2006 was introduced in December 2006 and effective 2007. It
introduced new exceptions regarding satire/comedy as well as private copying, and also aimed
at making the Copyright Act more similar to the United States Digital Millennium Copyright Act,
and thus added tougher penalties regarding infringement over the internet, strengthened anticircumvention laws as well as provisions regarding the increase of libraries. All these reforms
were needed in order to keep up with the advances of technology.
The Berne Convention is one of two conventions worldwide regarding copyright. Originally
signed in 1886, the convention was originally aimed at the Copyright of books in other countries.
However to address the rise of internet technology, new material (such as databases and
programs), anti-circumvention measures as well as the ease of transfers, the World Intellectual
Property Organization Copyright Treaty was added in 1996, backed by the WIPO (World
Intellectual Property Organization), a specialised branch of the United Nations (UN), created to
“to encourage creative activity, to promote the protection of intellectual property throughout
the world."
In conclusion, the role of technology has caused many issues regarding Copyright. The increase
in technology has lead to the Internet allowing and providing easily accessible services for piracy
and sharing copyright materials. Legal implications are numerous with the developments of
conventions and international treaties as well as the Copyright Act 1968. The increase in
technology has lead to dramatic increase in difficulty with enforcing rights however as time
passes, the role of law reform helps keep law right on the trail of this rise in technology.
Bibliography
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The Pirate Bay trial - Wikipedia, the free encyclopedia. 2011. The Pirate Bay trial
- Wikipedia, the free encyclopedia. [ONLINE] Available at:
http://en.wikipedia.org/wiki/The_Pirate_Bay_trial.
Copyright infringement - Wikipedia, the free encyclopedia. 2011. Copyright
infringement - Wikipedia, the free encyclopedia. [ONLINE] Available at:
http://en.wikipedia.org/wiki/Copyright_infringement
An Introduction to Copyright In Australia – Australia Copyright Council. 2007.
Information Sheet [ONLINE] Available at:
http://www.copyright.org.au/admin/cmsacc1/_images/8735182134d3cb24174a63.pdf&rct=j&q=copyright%20in%20au
stralia&ei=B8nTTbXVK6fTiAL9rKCsBA&usg=AFQjCNEgT97GoslFApuBSX
Australian Copyright Council. 2011. Australian Copyright Council. [ONLINE]
Available at: http://www.copyright.org.au/.
Intellectual Property Australia 2011. IPA. [ONLINE] Available
at: http://www.ipaustralia.gov.au/ip/copyright.shtml.
Australian copyright law - Wikipedia, the free encyclopedia. 2011. Australian
copyright law - Wikipedia, the free encyclopedia. [ONLINE] Available at:
http://en.wikipedia.org/wiki/Australian_copyright_law.
Limewire trial ends with $105m payout to RIAA | Gadget Helpline UK
2011. Limewire trial ends with $105m payout to RIAA | Gadget Helpline UK:
Gadget News, Gadget Help, Gadget manuals, Gadget blog. The UK’s number one
gadget support club. [ONLINE] Available
at: http://blog.gadgethelpline.com/limewire-trial-ends-105mil-payout-riaa/.
AUSFTA Fact Sheet. 2011.IPA . [ONLINE] Available at:
http://www.ipaustralia.gov.au/pdfs/factsheets/ausfta.pdf
US lobbied NZ over copyright laws - WikiLeaks cables | ONE NEWS News.
2011. US lobbied NZ over copyright laws - WikiLeaks cables | ONE NEWS News.
[ONLINE] Available at: http://tvnz.co.nz/technology-news/us-lobbied-nz-overcopyright-laws-wikileaks-cables-4149178.
[Article 2] RIAA wins big in LimeWire lawsuit
In a decision that could mean sweeping changes to file sharing in the United States, a
federal court has found the company that operates file-sharing service LimeWire liable for
copyright infringement, according to court records reviewed by CNET.
U.S. District Judge Kimba Wood, for the Southern District of New York, on Tuesday granted
summary judgment in favour of the music industry's claims that Lime Group, parent of
LimeWire software maker Lime Wire, and founder Mark Gorton committed copyright
infringement, engaged in unfair competition, and induced copyright infringement.
"The evidence demonstrates that [Lime Wire] optimized LimeWire's features to ensure that
users can download digital recordings, the majority of which are protected by copyright,"
Wood said in her 59-page decision. "And that [Lime Wire] assisted users in committing
infringement."
The court decision could represent the biggest threat to online file sharing in years.
According to a survey by the NPD Group, LimeWire users account for 58 percent of the
people who said they downloaded music from a peer-to-peer service last year. At CNET's
Download.com, the LimeWire software has been downloaded more than 200 million times.
In the last week along, the software was downloaded nearly 340,000 times.
Wood's ruling could at the very least mean a shift in the downloading habits of millions. The
logical next step by the Recording Industry Association of America, the trade group
representing the four largest recording companies, is to get a preliminary injunction and
force Lime Wire to cease LimeWire's file-sharing functionality.
LimeWire responded predictably with strong opposition to the judge's decision and said it
looks forward to a scheduled June 1 status conference with Wood.
"LimeWire remains committed to developing innovative products and services for the enduser and to working with the entire music industry, including the major labels, to achieve
this mission," it said in a statement.
What may spell serious trouble for creators of music and video Web sites in the future is
Wood's decision to hold Gorton personally liable. If the ruling stands, it could set a
precedent that might dissuade other entrepreneurs from challenging the entertainment
sector's copyrights when developing new technology.
The RIAA has said it is entitled to the maximum statutory damages, which is $150,000 for
each registered work that was infringed. The number of infringing works they could try to
claim is likely in the millions.
The RIAA first filed suit against Lime Group in August 2006 and a month later the company
filed a countersuit, claiming the top labels engaged in unfair business practices designed to
scare away Lime Wire's users.
[Article 4] Vince Cable to back copyright law
reform
Vince Cable, the business secretary, will on Wednesday give cabinet-level support to a report
calling for a wide-ranging overhaul of the UK's intellectual property and copyright laws.
The minister is expected to endorse the major recommendations of Professor Ian Hargreaves's
review into copyright, which is due to be published on Wednesday, in a speech to be delivered
at a conference run by the Alliance Against IP Theft.
Hargreaves's report is expected to call for a loosening and simplification of some aspects of
copyright law, a view held by Cable who is will say that the current system has failed to "keep
pace" with the fast-moving digital economy.
Cable is set to highlight such out of date restrictions as "obstacles to important research,
innovation and growth" for British businesses and entrepreneurs as well as "impinging" on the
day-to-day lives of consumers.
The minister is expected to say that "one of Hargreaves's great contributions has been to show
the importance of copyright in less obvious contexts. He describes how academic work on
malaria – which seeks to draw on previous research through a process known as data mining – is
being stymied by copyright and contract restrictions."
The review will call on ministers to look at initiatives such as creating a "one-stop shop" body to
make it easier to get clearance for the use of copyrighted content. The new body, to be run by
rights holders, aims to long-running issue of rights around "orphan works" – where the original
musicians, writers, heirs or other copyright owners cannot be traced.
Significant amounts of archive material held by organisations including the BBC and the British
Film Institute that have not been exploited by the industry because there have been issues over
who some of the IP rights holders might be. The problem, Cable will observe, is that "one
unknown author can effectively hold the interests of the others to ransom".
Other recommendations aim to clear up anachronistic regulations, such as the commonplace
practice of downloading a CD on to an MP3 player, called "format-shifting", which is technically
illegal. In response to that proposal, Cable will highlight problems with the existing rules.
The business secretary is expected to say that "the consequence of the ban on format-shifting
[copying CDs on to a computer or MP3 player] is simply to make it harder for a British
entrepreneur to compete with technology developed in the US and other countries where
there's no such ban." A hot topic of debate among rights holders has been whether Hargreaves
will call for the adoption of US-style "fair use" rules, which companies such as Google have
exploited to build its YouTube business without fear of prosecution for using copyrighted
content. It is understood that the Hargreaves review will reject the proposal to introduce such a
system to UK law. The report will also argue that intellectual property laws around parody,
which are considerably more stringent than in countries such as the US, be relaxed to allow
comedians, broadcasters and other content creators more creative scope – ensuring that takeoffs such as the YouTube hit Newport State of Mind are no longer removed.
[Recent] WikiLeaks cables have revealed the US offered to
draft new copyright laws for New Zealand.
Whistleblower Wikileaks published around 1500 more cables over the weekend, written by the
US Embassy in Wellington. Some of the more controversial cables have already been leaked to
media outlets but this is the first release of all of them on a single Wikileaks site.
The cables also show that the US offered to spend more than $500,000 to fund a recording
industry-backed IP enforcement initiative.
According to the cables, the US actively lobbied several cabinet members while New Zealand
was working through its copyright reform in 2008. The attention was similar to that shown to
Canada, Sweden and Spain. Canada was shown particular interest for the government's
"continuing failure to introduce - let alone pass - major copyright reform legislation that would
implement and ratify the World Intellectual Property Organisation (WIPO) Internet Treaties."
As a result Canada was placed on the Special 301 list in an attempt to embarrass them into
passing the new law. New Zealand was not placed on the same list, with the US saying it would
be a "counterproductive" move.
A February 2008 cable notes that Consumer Affairs Minister Judith Tizard and Trade Minister
Phil Goff were presented with a list of shortfalls to submit as the legislation was being drafted.
"Post has presented the list of noted shortfalls in the draft legislation to Minister Tizard
(Consumer Affairs), Minister Goff (Trade) and to officials within the Ministry of Economic
Development, the agency primarily responsible for drafting legislation and monitoring IP
enforcement. New copyright laws were passed in April 2008. Much earlier, an April 2005 cable
reveals America's willingness to fund a recording industry enforcement initiative. The project
was backed by the Recording Industry Association of New Zealand (RIANZ) and the Australasian
Mechanical Copyright Owners Society (AMCOS).
The proposed budget included four salaried positions, legal costs for investigation and
prosecution, and training programmes.
The organisation would have been responsible for enforcement operations and seizures.
RIANZ still runs an anti-piracy site, but it does not include disclosure about the source of funding.
In 2009, the US also offered to help NZ with drafting its three-strike legislation, a form of which
was recently made law under urgency. But the US approved of New Zealand's redrafting of the
law. "This particular section of the copyright law deals with provisions to terminate repeat
copyright infringers who use the internet to illegally download copyrighted material. The GNZ
plan looks to be well thought out and with the assistance of a panel comprised of five of NZ's
leading intellectual property experts, the redrafted provision looks positioned to avoid the
earlier pitfalls and criticism of poor draftsmanship," the cable said.
Contributors to discussions on the subject say the cables are confirmation that the US has long
been pushing countries all over the world to draft heavier copyright legislation.
"Our government recently passed the mentioned changes to S92A in an urgent session of
parliament which was called for the purpose of funding the disaster recovery in Christchurch,"
said Peter Ajamian, Pirate Party president. "So we now have the government sneaking
underhanded legislation through the backdoor to avoid the public comment period which got
the legislation delayed before," another post said. The said bill, which repealed Section 92A of
the Copyright Act, comes into effect from September 1. It means from September 1
downloading copyright-protected material will be punishable with fines of up to $15,000, and
copyright holders will be able to approach Internet Service Providers (ISPs) if they believe an
ISP's client has been illegally downloading their material. The bill's passing led to an online blackout campaign with many protestors claiming that vulnerable users would be unfairly targeted.
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