The Government is conducting a review of the recently introduced format shifting exceptions in the Copyright Act (47J and 110AA). The review is required by the Copyright Amendment Act 2006. The Attorney-General's Department has released an issues paper inviting submissions on the operation of these provisions. More information is available here.

Submissions are due just around the corner (29 February) - so get submitting!

Labels: abi, exceptions, review

Earlier in the week SMH reported that the Government is considering forcing ISPs to disconnect users who access pirated material (three strikes and you're out, UK style).

Kim Weatherall has done an excellent overview of the problems with this approach.

Labels: abi, enforcement, piracy

In 2006, the (sadly, soon to be ex-) Senator Andrew Bartlett helped us identify a new species of creature, one borne out of the Copyright Act amendments, known affectionately as "the Congealed, Wobbling Blob of Copyright" (see here and here).

In 2007, it appears the Blob has moved with the times and now has its own 'BlobBook' page, and sends its silly season good wishes:



Seasons Greetings from all of us at the House of Commons!

Labels: abi, Fun

The Fair Use Project at the Centre for Internet and Society (Stanford Law School) will help defend a book publisher planning on releasing a print version of the The Harry Potter Lexicon. Publication of the book has been blocked by JK Rowling and Warner Brothers based on claims of copyright and trademark infringement. Rowling notes:

"It is not reasonable, or legal, for anybody, fan or otherwise, to take an author's hard work, re-organize their characters and plots, and sell them for their own commercial gain. However much an individual claims to love somebody else's work, it does not become theirs to sell."

Rowling previously shared quite a close relationship with the Lexicon and has publicly praised the website. (Read more in this post on Ars Technica).

According to SMH:

"Fair Use Project Executive Director Anthony Falzone said the Lexicon is protected by US rules that have long given people 'the right to create reference guides that discuss literary works, comment on them and make them more accessible.'"

Labels: abi, cases, fair use

The Cyberspace Law and Policy Centre will be hosting a symposium on the proposed OO XML ISO standard and Australia. The event is free and we hope to see you there!

Speakers: A range of technical, legal and content experts from Australia and the region
Date: Friday 14 December 2007
Time: 8:30-1:00 (technical), 2:00-4:30 (legal) (catering provided)
Venue: Room 101, level 1, new Law Building, UNSW lower campus
URL: http://www.cyberlawcentre.org/2007/ooxml/

This symposium to explore issues raised by the proposed OOXML (Microsoft Office Open XML) document format standard from Microsoft, to assist consideration of the Australian response to the proposal through Standards Australia. Expert commentators from a range of perspectives will present written and oral summaries of the issues, and there will be detailed discussion of the most significant of these. There is proposed informal participation from Standards Australia, and experts associated with them. There are two sessions, Technical and Legal; there will be a preliminary 'Background Paper' on the Legal area, and a list of 'top 10 topics' for the Technical. The web page will also be updated with more detail and further resources close to the day.

Entry for this OOXML Symposium is free, but places are limited. To reserve a place, it is essential to RSVP to feedback@cyberlawcentre.org, indicating if you are coming for AM, PM or both sessions, if you need lunch, and the nature of your interest in the proposed standard.

Labels: abi, conferences, open standards

The Australian public is going to the polls on 24th November to elect members of our Federal Parliament (the one that sits in Canberra, is currently led by John Howard, and is constantly under siege from members of The Chaser's War on Everything). The calling of the election was a long time coming. Even though we knew that an election would have to take place soon (so says the Constitution), Prime Minister John Howard took his time in announcing the exact date. But now, in the words of one Federal House of Representatives candidate, it's "game on". A normal part of an election process, particularly at such a high level of government, is the holding of debates between party leaders. In Australia, debate is already under way as to who, when, and how these debates should take place.

House of Commons friend and ANU academic Dr. Matthew Rimmer has called for Australia to follow the lead of US Democrats presidential candidate hopeful Barack Obama and allow these debates to be made "freely accessible across all media and technology platforms" (See the ANU Press Release here). In the United States, Obama suggested that the US Democrat debates be either placed in the public domain or licensed under a Creative Commons licence.

Dr Rimmer has said that

"Whichever television networks or internet media end up broadcasting the federal
election debates, it’s important to the health of our democracy that people are
free to capture and distribute the dialogue of our prospective leaders so that
they can make a more informed decision."

The House of Commons strongly supports Dr. Rimmer's suggestion. It is an unusual one in an Australian context - in the United States, there is no copyright in works produced by the US government and thus there is at least a precedent for this type of action. There is also the First Amendment guarantee of freedom of speech, which arguably means that this type of content gains even greater significance. However, there has been a shift in this campaign to Australian political parties embracing all that the digital revolution has to offer (just type 'Kevin07' into Google, for example). A pledge by the parties to make debate materials freely available and accessible via sites such as YouTube would be both a positive and definite step for Australian democracy in the digital age.

The logisitics of such a proposition has also caused much discussion amongst House of Commons housemates. Housemate Ben writes:

"I think election debates should belong to the commons, at least insofar as
complete reproduction is concerned. However, I do see that there are good
reasons not to allow modifications, because they could be used to spread
disinformation at such a crucial time. For these reasons, a licence such as
Creative Commons No Derivatives would be appropriate (as opposed to, say, a
public domain dedication). It's also worth noting that, even under such a
licence, derivatives could be made for the purpose of satire (correct me if I'm
wrong here!), and that could perhaps be both a good and a bad thing (I'm not
sure to what extent you could use the satire exception to spread
disinformation)."

In response, Housemate Abi has agreed (and I concur) that the parody or satire fair dealing exception in the Copyright Act could probably be used to create parodies, although there issue regarding modifications may need to be addressed.

For more information on Dr. Rimmer's proposal, the ANU Press Release can be found here.

Labels: abi, ben, catherine, Creative Commons, open content, parody, youtube

(Via Choice)
9:00am - 5:00pm, October 29, 2007 (North Sydney)

Consumers' rights to use intellectual property are increasingly under threat. Policy is made at an international level - how can national consumer organisations work better to strengthen their voice on the global stage? This interactive one-day forum will introduce current campaigns and brainstorm ideas for action to reassert consumer rights.

Speakers include:

• Michelle Childs (Knowledge Ecology International, USA)
• Indrani Thuraisingham (CI, Malaysia)
  
• Indah Suksmaningsih - YLKI (Indonesia)
• Chris Murray (Consumers Union, USA)
  
• Luis Villaroel Villalon (Ministry of Education, Chile)
• Alwin Sixma - (Consumentenbond, The Netherlands).
  

The full program is available here.

Presented by: Consumers International, Choice, Consumers Union, Consumentenbond, Trans Atlantic Consumer Dialogue (TACD).

Registration in advance is required. General attendance: $65. Students/Academics/Employees of NGOs: $25. Please contact Lizzie Ball (CHOICE) at lball@choice.com.au or +61.2.95773372. Registration fee includes Morning Tea, Lunch and Afternoon Tea

For more information about the Consumers International World Conference 2007 see this page.

The Unlocking IP team will be there. Hope to see you there too!

Labels: abi, conferences

(Via Ars Technica) BusinessWeek reports that Universal Music is looking to compete with the Apple iTunes music store by offering a music subscription service called Total Music. From the reports, it seems that Universal is looking to explore different business models, such as using hardware makers or cell carriers to subsidise the subscription fee, and allowing the user to download unlimited amounts of music. It appears that affiliated companies would have Total Music offered as a bundle with their product, increasing the value of the product (and possibly the price) and moving more units.

I would like to know more about how the products and the subscription service would be priced in Australia and what part DRM would play (preferably no part). I would also be interested in finding out if the subscription service would be a service in its own right- or only available with certain products. It seems that there is some interesting potential here for reviving music sales and a very real threat to Apple if this gets off the ground.

Labels: abi, business models

Housemates Abi and Catherine, and project chief investigator Graham Greenleaf have been published in the Journal of World Intellectual Property. They were too modest to post about it themselves, but something has to be said! I mean, if I was published in the Journal of World Artificial Intelligence, well I'd want to tell everyone :) (not that there's a journal called the Journal of World Artificial Intelligence, but that's not the point!).

So without further ado, here's the link: Advance Australia Fair? The Copyright Reform Process.

Now, I'm no legal expert, and I have to admit the article was kind of over my head. But, by way of advertisement, here are some keywords I can pluck out of the paper as relevant:

• Technological protection measures (TPMs)
  
• Digital rights management (DRM)
• The Australia-US Free Trade Agreement (AUSFTA)
• The Digital Agenda Act (forgive me for not citing correctly!)
• The Digital Millennium Copyright Act (DMCA)
  
• The World Intellectual Property Organization (WIPO)

Not to mention all the courts and cases that get involved. Anyway, that should be enough to whet your appetite. Get reading it; get citing it ;)

Labels: abi, ben, catherine, legislation, research

Radiohead's seventh album "In Rainbows" will be released in a couple of days and what really has people buzzing about it is the fact that it's left up to you to decide how much you want to pay for it. The album will be available for digital download exclusively through Radiohead's website. The price field is left blank for you to complete. When you hit the '?' button the website tells you "It's up to you" clicking '?' again leads to the site urging, "No really, it's up to you".

While this isn't the first time an artist has made their music available for free legal download on the internet it is the first time that I am aware of successful artists asking fans to pay what they want for their music (although this is somewhat similar to honesty box policies on donations). The digital download will be available months before the physical discbox (for 40 pounds you get vinyl records, enhanced CD with extra sounds, artwork and other extras). I have always supported looking at different business models to deal with IP. The diehard fans will definitely purchase the discbox, supporters will throw in a couple of dollars. This might work for an established well-respected band like Radiohead but how would disposable pop fare? Earlier this year Nine Inch Nails criticised their record company for selling their album for much more money than other newly released music in Australia (e.g. $34.99 versus Avril Lavigne at $21.99) because their core audience will pay whatever it costs to own their latest record (whereas some pop has to be discounted to sell units). In September, at a concert, after discovering that prices had not changed the band ushered fans to "STEAL IT. Steal away. Steal and steal and steal some more and give it to all your friends and keep on stealing. Because one way or another these [bleep]s will get it through their head that they're ripping people off and that that's not right." (Read more on NIN in this post on Defending Scoundrels). It would appear that Radiohead's proposal is fairer for fans because at least they are given a choice about what premium they will pay. A ‘pay what you want’ system might even get the best artists floating to the top.

Radiohead will be boosted by the extra publicity- but will others follow suit? We will also discover some interesting things about how consumers believe music should be priced. At the very least, it seems that more people will have copies of this album increasing the market for future tours and other merchandise and products.

If this is the IP revolution- sign me up!

Labels: abi, business models

The Software Freedom Law Centre (SFLC) has filed a copyright infringement suit against Monsoon Multimedia Inc in the first such lawsuit in the U.S. based on violation of the GNU General Public License (GPL). The Software Freedom Law Centre has claimed that Monsoon Multimedia failed to provide downstream recipients with the source code of the free software application Busybox, when distributing firmware which included Busybox, as required under the GPL.

More information is available here on the SFLC website and here on Arstechnica.

(Hat tip: Roger Clarke)

Labels: abi, gpl, licensing

Lawrence Lessig has made some comments about the Virgin Australia 'Are you with us or what?' advertising campaign which I blogged about below.

Lessig has also posted a copy of the complaint available here.

Discussion on Slashdot is also available here.

(Hat tip: Matthew Rimmer)

Labels: abi, Creative Commons, licensing

Readers might recall the Virgin Mobile Australia and Creative Commons licensing controversy I blogged about here and here. Basically, Virgin Mobile Australia launched an ad campaign titled 'are you with us or what' which used Creative Commons licensed images available on Flickr. Red flags were raised because Virgin had added comments to the images that some considered derogatory. Further, issues such as the lack of a signed model release form, privacy, moral rights and whether the terms of the license have been satisfied were also raised.

As I have stated in a previous post:

"I think it is essential to reiterate that there are multiple legal issues at play and it is important not to get them confused. While I spoke about issues regarding attribution requirements under the license in my previous post, it is important not to mix this up with moral rights under the Copyright Act (which applies in Australia and are explicitly referenced in the Australian Creative Commons licences, but not in other jurisdictions like the US and the US Creative Commons licenses). Further, moral rights, and terms under the license apply in relation to the copyright owner/licensor- which in many cases is the photographer rather than the individuals in the photographs.

In some respects their advertising campaign is a very interesting use of Creative Commons licensed materials, providing some nice publicity for the photographers who have chosen to add an open license to their material which permits commercial use. However, it is also important for Virgin to read the terms of the license closely and fulfil their obligations under other areas of law."

Very useful information can also be found in this post by Jessica Coates.

According to SMH the family of Alison Chang (a young girl in one the images used by Virgin Australia - with the slogan 'dump your pen friend') has named "Virgin Mobile USA LLC, its Australian counterpart, and Creative Commons Corp" as defendants. Apparently Chang's family have accused Virgin of failing to credit the photographer by name and also accuses the companies of libel and invasion of privacy. Chang's family and the photographer, Justin Ho-Wee Wong, are seeking damages.

As Jessica points out in her post mentioned above:

"...some commentators have suggested that the failure to deal with the issue of model clearances represents a flaw in the CC licences. However, the licences make it very clear that they merely provide copyright permissions, and that they do not purport to deal with any other area of law. Due to the vast number of laws that can come into play when a person is using a copyright work (eg defamation, privacy, competition) it would be impossible for the licences, or the person issuing the licence for that matter, to definitively cover all potential legal issues in placing it releasing it for general use. There is arguably an onus on the person making use of the work to identify any laws their particular use might breach, and to make an effort to obtain any additional permissions that are needed - particularly if their use is large-scale and commercial."

I am not quite sure what will become of all this especially because of the array of laws and different jurisdictions in play. I am actually quite stunned that it has gone this far. It will be interesting to discover in what legal context Creative Commons was named as a defendant in this lawsuit. It is possible that this relates to Creative Commons licenses not dealing with the myriad of legal issues that could be relevant- if this is the case I can't see how this suit will be successful against Creative Commons (for the reasons Jessica points out above).

Labels: abi, Creative Commons, licensing

In this article in the Guardian Corey Doctorow discusses the benefits of free data sharing. Doctorow notes "like a bottled water company, we compete with free by supplying a superior service, not by eliminating the competition".

Labels: abi

Mediadefender, a company that attempts to thwart piracy using curious techniques (for example, flooding P2P networks with spoof files) are the subject of a whole lot of criticism after thousands of company emails have allegedly been revealed to the world courtesy of Hackers, calling themselves 'Mediadefender-defenders' (see SMH article here).

Mediadefender had previously been accused of running a site called MiiVi offering downloads of copyright protected materials. Some have theorised that the site was used to entrap users. Ryan Paul at Ars Technica writes:

"The MediaDefender e-mails leaked this weekend confirm beyond doubt that the company intentionally attempted to draw traffic to MiiVi while obscuring its own affiliation with the site. The e-mails also show that MediaDefender immediately began to recreate the site under a different name and corporate identity soon after the original plan was exposed."

The emails apparently also reveal discussions with the New York Attorney-General's office and possible provision data to this agency. The emails also allegedly contain a draft contract with Universal Music Group, which details the company's pricing structure and 'services'.

Later Paul writes:

"Although many of MediaDefender's innermost secrets have been laid bare by this leak, there are many aspects of the company that remain shrouded in mystery. The ultimate purpose of the MiiVi site, for instance, is still an enigma. In some ways, the information in these e-mails raises more questions about MiiVi than it answers. It is likely that many additional details about MediaDefender's operations will be disclosed to the public as new secrets are uncovered in the e-mails. The rate at which these e-mails propagate across the Internet may also stand as a testament to the difficulty of trying to stand between consumers and their torrents."

Torrentfreak interestingly points out:

"For a business model that gets its life-blood from piracy, in a twisted way this leak is likely to help generate even more business and develop the market. Funny old world."

And all in time for 'International Talk Like a Pirate Day' tomorrow.

Labels: abi, piracy

The MCPS-PRS (an alliance of UK collecting societies) has entered into a licensing agreement with YouTube allowing individuals to upload videos containing copyright protected songs onto the popular website. YouTube will pay an undisclosed licensing fee. This follows similar deals taking place in the US.

More info is available here and here.

Labels: abi, licensing, youtube

More piracy parody clips from the Revue are available here and here.

Labels: abi, Fun, piracy

The Attorney-General's Department has released draft guidelines for the administration of the infringement notice scheme deployed by the Copyright Amendment Act 2006. More information is available here. Comments on the draft need to be returned to the Department by 5 October 2007.

Labels: abi, infringement

Controversy abounds after newspapers pick up on Wikiscanner and uncover a serious of 'interesting' edits from 'interesting' institutions. The Herald reports that staff from the Department of Prime Minister and Cabinet have been editing Wikipedia pages, removing material that be damaging to the Government. Opposition leader, Kevin Rudd has criticised Prime Minister John Howard for "engaging public servants to change Wikipedia" rather than personal political staff.

Premier of NSW, Morris Iemma is also under fire after it was discovered that someone from within the NSW Premier's Department removed a reference to a controversial outburst made by Iemma in a media conference last year.

WikiScanner, which credits itself for "creating minor public relations disasters, one company at a time" has been utilised to spot some interesting 'salacious edits':

• A Dell employee insisting that visitors 'get an apple'.
• Someone from Pepsi removing the section on 'long term health effects' of Pepsi.
• Exxon underplaying the effects of its oil spill.

(More are listed on Wired's "Most Shameful Wikipedia Spin Jobs")

Wikiscanner is a searchable database linking anonymous edits on Wikipedia (where IP addresses are displayed in lieu of a username) to organisations with the associated IP address. Issues have been raised with the fact that it can't be evidenced that the IP was used with authorisation.
If you take a look at the Wikipedia entry for Wikiscanner you can see that no one is without safe (BBC reporting on edits, The Times then reporting on edits by BBC staff etc).

Wikiscanner brings an interesting layer of transparency to Wikipedia, and could be useful tool if the results it shows are reliable. Some organisations have already started banning employees from using Wikipedia (this deals with some of the more embarrassing edits). I suspect that others may start using other tools to ensure that edits can not be traced back to them - and continue whitewashing regardless.

Update: 'The best of recent edits' here.

(Pictured: "Wikipedian Protester", Randall Munroe - via his excellent webcomic xkcd, available under a Creative Commons Attribution-NonCommercial 2.5 license)

Labels: abi, wikis

A 21 year old man from New South Wales has been arrested for recording The Simpsons Movie on his mobile phone and distributing the movie on the internet. The copy of the movie was taken down after around 2 hours however, by that stage, it had been copied many times and further disseminated. It took the police about 72 hours to locate the man and raid his home. The Australian Federation Against Copyright Theft (AFACT) have issued a press release here. Apparently the man is facing up to five years imprisonment. More information is also available in this Sydney Morning Herald article.

I wonder what Comic Book Guy would have to say about all this?

(Pictured: "Congealed Wobbling Blob of Copyright", Abi Paramaguru, Picture is available under either a AEShareNet license or Creative Commons Attribution 2.5 License.)

Labels: abi, infringement

ABC Radio National, Australia Talks discussion regarding the recent ruling by the Copyright Tribunal increasing some music royalty fees. I blogged about this decision here.

(Hat tip: Matthew Rimmer)

Labels: abi, licensing

Creative Commons is planning to launch ccLearn. The project is aimed at minimising the barriers to sharing and reusing educational materials. This will be done using licensing, promoting the use of interoperability standards and educating teachers and learners.

(via BoingBoing)

Labels: abi, Creative Commons, licensing

House of Commons readers will know of the Virgin Australia/Creative Commons images controversy that I have blogged about previously (see ad campaign here). There were plenty of other pictures that Virgin could have used in its ad campaign, for example, why didn't Virgin just use pictures of cats (thereby avoiding issues of model releases, defamation, privacy etc) and, in the great tradition of LOLCATS, build a campaign around that? There are hundreds of thousands of CC licensed cat photos on Flickr so we decided to help Virgin out with this image based on their ad "multi tasking is like swordfighting, it always ends in tears".

Labels: abi, catherine, Fun, lolcats

The Australian has done a follow up article regarding the Virgin Australia advertising controversy (blogged about here and here).

I think it is essential to reiterate that there are multiple legal issues at play and it is important not to get them confused. While I spoke about issues regarding attribution requirements under the license in my previous post, it is important not to mix this up with moral rights under the Copyright Act (which applies in Australia and are explicitly referenced in the Australian Creative Commons licences, but not in other jurisdictions like the US and the US Creative Commons licenses). Further, moral rights, and terms under the license apply in relation to the copyright owner/licensor- which in many cases is the photographer rather than the individuals in the photographs.

In some respects their advertising campaign is a very interesting use of Creative Commons licensed materials, providing some nice publicity for the photographers who have chosen to add an open license to their material which permits commercial use. However, it is also important for Virgin to read the terms of the license closely and fulfil their obligations under other areas of law.

Labels: abi, licensing

Last week I blogged about Virgin Australia's latest advertising campaign, "Are you with us or what", and Virgin's use of Creative Commons licensed images in this campaign. Today there is an article in The Australian titled "Virgin 'in the wrong' on ads". The article contains comments from people unhappy about how they have been depicted in some of the images used by Virgin.

It is important to note that the person in the photograph is not necessarily the copyright owner. Generally it is the photographer that is the owner of copyright, though some exceptions apply, notably, in the case of commissioned photographs. As a result, rights may not arise for the individuals in the photographs under copyright law (they will have the look elsewhere, such as trade practices law, defamation or privacy). This 'photographers and copyright' information sheet by the Australian Copyright Council provides a useful overview.

Theoretically, the copyright owner in all of these cases has chosen to attach a Creative Commons attribution license (which allows for commercial use).

While there are multiple legal issues in play here, I am interested in whether Virgin has satisfied their requirements under the Creative Commons license.

For example, the first image that they use is a turtle ("websites shouldn't take long to load"). The link available on the bottom left hand corner of the picture goes to the Flickr user's photo page (which happens to contain 1,323 photos). From there, you will have to locate the particular photo in question and click on the photo page (I managed to locate Big Turtle in the Masoala Hall, Zurich using tags). Under 'additional information' you can click on 'some rights reserved' to discover that the photo is licensed under a Creative Commons Attribution 2.0 license. I query if link to the user's page provided by Virgin satisfy the attribution requirements under the license. If you look at the legal code for the license above, Section 4 outlines restrictions to the rights granted under the license:

a. ...You must include a copy of, or the Uniform Resource Identifier for, this License with every copy or phonorecord of the Work You distribute, publicly display, publicly perform, or publicly digitally perform...

b. ... You must keep intact all copyright notices for the Work and give the Original Author credit reasonable to the medium or means You are utilizing by conveying the name (or pseudonym if applicable) of the Original Author if supplied; the title of the Work if supplied; to the extent reasonably practicable, the Uniform Resource Identifier, if any, that Licensor specifies to be associated with the Work, unless such URI does not refer to the copyright notice or licensing information for the Work; and in the case of a Derivative Work, a credit identifying the use of the Work in the Derivative Work...

While 'reasonable to the medium or means You are utilizing' allows for a bit of flexibility, it appears to me that Virgin Australia could have done more by way of attribution. They provide a link to the author's Flickr page, however you still have to sift through this to find the actual photo. Only after you find the photo do you see which license is attached (and other details such as the title of the photograph). I am not sure that providing a link - which has a link - which contains a link to the license constitutes 'including a copy' of the license/URI as required under the 4 (a) license. Similar issues arise with regard to 4(b). I would love to hear what other people think about this issue and whether they believe the terms of the licence have been breached.

The Virgin scenario bears a (slight!) resemblance to a Canadian case involving a photographer and the use of a CC licensed image by an MP (the photographer disagreeing with the political views of the MP). Attribution issues were raised here as well.

It is a shame that this and other issues have presented themselves in reference to a campaign that is in some respects an innovative and interesting use of Creative Commons licensed materials.

(Pictured: "Big Turtle in the Masoala Hall, Zurich", alex.ch, available under Creative Commons Attribution License 2.0 license.)

Big thank you to Catherine for her help with this post!

Labels: abi, licensing

The Cyberspace Law and Policy Centre and Linux Australia are hosting a LawTechTalk by Maureen O'Sullivan (lecturer from the National University of Ireland, Galway). The talk considers issues in Free/Libre and/or Open Source Software (FLOSS) licensing, particularly as manifest in the recently finalised GPL v3 and their impact on Spanish-speaking or civil code countries, and her proposal for an international standard law to help free software licenses work the same in all users' countries.

Topic: The Democratic Deficit in Copyright Law: A Legislative Proposal

Date: Wednesday 25 July

Time: 1-2pm

Venue: Room 101, Faculty of Law Building, University of New South Wales

More information is available here.

All are welcome. Hope to see you there!

Labels: abi, free software, seminars

I finally got around to watching this video by Michael Geist and Daniel Albahary. If you haven't already, take a look:

Labels: abi, piracy

Virgin Australia Mobile has started an advertising campaign called "Are you with us or what?" using Creative Commons licensed (commercial use permitted) content available on Flickr. Many images have been used and Virgin has added text to these images. At times the text they have added could be considered derogatory. This has sparked quite a bit of outrage.

Read more in this post on TechnoLlama.

Labels: abi, licensing

When you receive several emails about a copyright related development, all before lunchtime, you know something is up (though it could just say something about me).

Yesterday the Copyright Tribunal approved an application to increase licensing fees for nightclubs and dance parties. The application was made by a copyright collecting society called Phonographic Performance Company of Australia (PPCA). PPCA are calling the decision 'a better deal for artists' I am calling it 'license fee increase of around 1400%- that is massive'.

The decision can be found here [RTF]. Brief outline below.

Phonographic Performance Company of Australia Limited (ACN 000 680 704) under section 154(1) of the Copyright Act 1968 (Cth) [2007] ACopyT 1

Framework: The Tribunal discusses the statutory framework for its power to confirm or vary licence schemes. At [10] they note that this involves "a value judgment as to what it considers reasonable in the circumstances. It is not usually possible to calculate mathematically the correct licence fee in any particular case."

Nightclubs and Dance Parties: The decision discusses a study commissioned by the PPCA raising ground breaking points such as nightclubs play music and sometimes nightclubs have dance floors. Nightclub operators presented evidence of their declining patronage and how they usually operate below capacity. Dance parties are usually one off events, the popularity of these events have also declined according to evidence presented to the Tribunal.

Current Tariffs: Current license fees for nightclubs are 7.48 cents per person per night (number is based on licensed capacity of the venue). The amount is payable for each area where music is playing (if applicable, different rooms, levels etc). Dance parties need to pay 19.8 cents per person, based on estimated attendance.

The Respondents: The Respondents include Australian Hotels Association, Clubs Australia, Clubs NSW, Explorer Cruise Lines Ltd and others together with Nightclub Respondents. Issues raised included the definition of nightclub, whether license fees should be calculated based on attendance rather than capacity, non protected music, whether the extent that patrons are willing to pay for recorded music can be established, the way in which the fee is calculated for dance parties and whether not for profit organisations liked Mardi Gras should be treated differently from other organisations.

Willingness to Pay: The PPCA engaged Allen Consulting Group (you might remember their report into the economic effects of copyright term extension) to estimate the value of sound recordings in nightclubs and dance parties. Allen Consulting utilised a 'choice modelling survey' to determine 'willingness to pay'. The nightclub respondents criticised the survey claiming that it was "divorced from economic and competitive reality" and provided unrealistic choice sets (at [147]) . The case continues with various factors relevant to the assessment of economic impact.

Judicial Estimate: With respect to nightclubs the PPCA claimed $2.32 per person. The Tribunal discounted this rate based on non-protected music (-20%), competition from other late night venues providing live or recorded music (-20%) however chose not to discount for actual patronage being below or above capacity. Further:

"The division of the estimate of willingness to pay should be adjusted to reflect the fact that the entrepreneurial risk in relation to the operation of a nightclub is undertaken by the operator and not by the Society or by APRA...A more appropriate division, therefore, would be 50% to the operator and 25% to each of APRA and the Society. " at [215].

The Tribunal arrived at a figure of $1.05 for the use of protected music at nightclubs.

PPCA claimed $15.37 for value of music at dance parties. This figure was reduced by 20% for non-protected music and entrepreneurial risk, leaving this figure at $3.07 per person.

Not for profit: Mardi Gras made an application under s 157(2) of the Copyright Act seeking a determination that the license scheme is unreasonable in their circumstances. The Tribunal found:

"Clearly, much of Mardi Gras’s activities are intended to serve a community purpose. However, that does not mean that the Society, and its members, must also be compelled to support those purposes. It is not for copyright owners, or any other private group in the community, to subsidise public instrumentalities or charities" at [232].

Outcome: The scheme proposed by the PPCA was approved subject to adjustments (to rates and defintions) indicated by the Tribunal. The application by Mardi Gras was refused.

Thoughts?

The case provides interesting insight into the calculation of licensing fees. The Tribunal noting that:

"The exercise that results in that figure is, of course, to a considerable extent, arbitrary and artificial. Nevertheless, it has a rational basis for arriving at what has been described as a judicial estimate of what a reasonable but not too anxious licensor would require to be paid and what a reasonable but not too anxious nightclub operator would be prepared to pay for the right to play recorded music at nightclub venues" at [217].

In the end, it is the consumer who has to pay. Both through increased prices and, if this leads to closures, then reduced choice. It is the extent of this impact that is unclear. If this decision leads to the closure of less mainstream clubs then it is important to ask which artists are actually getting the better deal.

More reports here (The Age) and here (SMH).

Update: More info on the economic analysis in the Tribunal decision available here on Core Economics (hat tip: Peter Black).

Labels: abi, licensing

(Pictured: "Wikipedian Protester", Randall Munroe - via his excellent webcomic xkcd, available under a Creative Commons Attribution-NonCommercial 2.5 license)

Labels: abi, Fun

Read it here.

Labels: abi, gpl

A few weeks ago Catherine and Abi went to Canberra to attend the ANU College of Law 'Outlaws' Postgraduate Research Conference. Before we left we warned you, our kind readers, that blogging would be temporarily suspended and promised to include some photos that captured 'the essence' of Canberra (see post here). And here's a few to get you started...


We have recently discovered that this is the National Carillon (excellent photography by Catherine Bond).


Catherine was keen to get a new job at the High Court but was told by a security guard that the position of Chief Justice was not yet available (but he took her name for future reference - or possibly - to keep her out in the future).


Finally, as you can tell by the expression on Abi's face- Canberra can be downright joyful (despite the cold)!

If anybody feels that our photos do not truly reflect the essence of Canberra, Matthew Rimmer has kindly suggested the following places:

• The Telstra Tower
• National Museum of Canberra
• The Tuggeranong Hyperdome

After this post however we may not be allowed to leave the House of Commons for some time - so we hope that one day we will be able to visit these sites...

(Pictured: "Cath's shot of the Carillon", "Cath at the High Court" and "Joyful Abi", Catherine Bond, Pictures available under either a AEShareNet license or Creative Commons Attribution 2.5 License