Cyberspace Law and Policy Centre, University of New South Wales
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Monday, October 20, 2008


Australian Institute of Criminology report on 'Intellectual property crime and enforcement in Australia'

Last week the Australian Institute of Criminology released its report on Intellectual property crime and enforcement in Australia, with some very interesting findings. I haven't had a chance to go through the whole report yet but I just wanted to make a general comment about this statement, which I find completely unsurprising (at p. 38):

An Envisional study found Australia was the second-largest downloader of online
pirated TV shows in the world (15.6%), behind the UK (18.5%) but ahead of the US
(7.3%). Australians were the leading downloaders of pirated TV programs on a per
capita basis. The report found that increased bandwidth take-up, technological
advances and a high demand for US-based TV shows are some of the reasons that
piracy has boomed. Seventy percent of the piracy occurs through BitTorrent (BT)
(Envisional 2004, BBC News 2005, Reuters 2005). The survey found that the top TV show downloads were 24, Stargate Atlantis, The Simpsons, Enterprise, Stargate
SG-1, OC, Smallville, Desperate Housewives, Battlestar Galactica and Lost (Idato

Australia is, and has always been, since colonial times, an importer or 'user' nation of copyright-protected materials, so it came as no surprise to me that we were the second-largest illegal downloader of television shows. The fact that Australia is an 'importer nation' was picked up in the Spicer Committee's report and then later with regard to the intellectual property package of the AUSFTA. Back in the ye olde colonial days, the majority of our books were imported from the United Kingdom, with many UK publishers and then eventually some colonial publishers, producing specific 'colonial editions' for sale in Australia. As Martyn Lyons has noted in a chapter of the fantastic A History of the Book in Australia 1891 - 1945, Australia earned itself the reputation as being 'the jewel of Britain's book trade empire.' (see Martyn Lyons, 'Britain's Largest Export Market', in Lyons & Arnold (eds) A History of the Book in Australia 1891 - 1945, 2001, at p. 19).

Until about five years ago, a similar statement could be made regrding Australia's importation of international television shows, predominantly from the United States and, to a lesser extent, the United Kingdom (I think The Bill and Jane Austen miniseries adaptations would comprise a lot of that market!) And, just as in the colonies Australian readers had to pay a considerable amount more than their UK counterparts to purchase the latest fiction, Australians had to wait a long time to see new episodes of their favourite TV shows.

The West Wing is an excellent example - originally it was aired on the Nine Network, who changed the time and date of broadcast so often that many viewers began to resort to to get the latest series on DVD. Eventually (thankfully) it was picked up by the ABC and the sixth and seventh seasons were shown weekly until the end of the series.

With examples like this, it is really no surprise that Australians have turned to the Internet to catch their favourite shows just after they have been aired in the United States. This is not to suggest that I support this type of behaviour but it poses a challenge to the free-to-air networks in Australia to change their business models, and I know a number have. In an article published yesterday in the Sun-Herald newspaper (accessible of the Sydney Morning Herald website here) it is noted that shows such as House and the US version of Kath & Kim are appearing about one-three days after they appear in the States. Yet some very popular shows, for example, Heroes, are still taking over a fortnight to get to our screens, though that is still being described as 'fast-tracked'. Not fast enough, clearly.

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Thursday, October 02, 2008


Bowrey on Originality

As many readers will know, the issue of originality within Australian copyright law is currently a hotly contested issue, with the appeal in the IceTV v Nine Network decision to be heard before the High Court in two weeks time, on the 16th and 17th October.

Professor Kathy Bowrey, author of Law and Internet Cultures and House of Commons friend (and one of my supervisors), has recently penned an article on these issues, titled 'On clarifying the role of originality and fair use in 19th century UK jurisprudence: appreciating "the humble grey which emerges as the result of long controversy"'. Kathy's article has a slightly different focus: tackling originality in 19th century case law and how this concept developed. The abstract states:
Understanding nineteenth century precedent is one of the more difficult tasks in
copyright today. This paper considers why the nineteenth century cases and
treatises failed to clearly identify what the author owns of “right” and the
implications for the criterion of originality and for determining infringement
You can find it in the UNSW Law Research Series here and for any readers interested in the forthcoming IceTV case this is a must-read. Two weeks to go...

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Tuesday, September 09, 2008


Rowling Wins in 'Harry Potter Lexicon' Case

This just in...JK Rowling, the author of those books about a fledgling wizard, has won her case against the unauthorised publication of the Harry Potter Lexicon, based on the website of the same name. Housemate Abi originally blogged about the case here. According to the Sydney Morning Herald report on the case, following the decision Rowling stated that:
"The (Lexicon) took an enormous amount of my work and added virtually no
original commentary of its own. Now the court has ordered that it must not be

"Many books have been published which offer original insights into the
world of Harry Potter. The Lexicon just is not one of them."
According to reports it is likely that the decision will be appealed. More can be read at the Sydney Morning Herald here or for those in the mood for some lighter reading, at the Internet Movie Database here.

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Wednesday, June 25, 2008


Thrilling Goings-on in the Wonderful World of Copyright Law

The ACTA saga continues, with the Australian Digital Alliance's press release zeroing in on the impenetrable veil of secrecy surrounding negotiations of the proposed Agreement. This follows media coverage, articles, and blog posts - including those on The Patry Copyright Blog, LawFont and House of Commons - debating just how sketchy the few available details about the Agreement are, and wide appeals to allow some level of public consultation on the Agreement in Australia.

In other copyright news, the Attorney-General's Department has tabled its Review of Sections 47J and 110AA: Copyright Exceptions for Private Copying of Photographs and Films. The Review recommends that no amendments be made to the provisions for the time being, gesturing to the relatively short period of operation of the provisions as one reason for this.

In the UK, 'Mr Modchips' has survived a copyright stoush, with judgement in his favour handed down by the Court of Appeal (Criminal Div). It was found that any alleged copyright infringement would have taken place prior to use of the modchips. It will be interesting to see whether the judgement prompts legislative action, as occured following the decision of the somewhat similar case of Stevens v Sony in the High Court of Australia.

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Thursday, June 12, 2008


Gettin' Medieval On Yo' iPod

The prospect of wanton destruction or confiscation of iPods, laptops and other devices suspected of containing copyright-infringeing content has become increasingly real, with news of a proposed international agreement on copyright policing surfacing recently.

A leaked 'discussion paper' on the Anti-Counterfeiting Trade Agreement (ACTA) on Wikileaks, since taken up by other bloggers and mainstream news outlets, has inspired exasperation and outrage in many quarters. It is expected that a draft Agreement will be tabled at the upcoming G8 summit in Tokyo, and it reads like a copyright law wish-list drafted by large record companies and movie studios.

Under the proposed Agreement, border security and other such officials in member States would have powers of search and siezure, where they have a suspicion - and mere suspicion would likely be enough - that an electronic device holds content that might infringe copyright. As Graeme Philipson (The Age) points out, because the discretionary power would be in the hands of security guards and acted upon immediately, there would be no involvement of courts or lawyers, and little chance for appeal. The copyright owner would be removed from the process of suing for infringement upon some evidence that it has actually occured.

In effect, a bunch of security guards at an airport could decide they 'suspect' you of being an infringinger and annihilate your iPod or laptop. (The fact that this could herald a whole new genre of 'profiling', a la 'terrorist suspect of middle-eastern appearance', is another matter. How do you spot a copyright infringer?)

Of more concern is that, because the security officials would also be able to determine what is or is not 'infringing', already-weak fair use/fair dealing type provisions that still offer at least some protection would arguably go out the window completely. Just picture trying to argue with humourless airport security staff that you're carrying a disk full of burned content to use for the purpose of parody. After a long-haul flight. With the prospect of all your other devices being searched as well. And then confiscated because they don't like your attitude.

Obviously, the only people who think this sounds like a great idea have been some US-based record and movie companies. Apparently, they have been throwing 'contributions' at US Congress members to 'encourage' sponsorship of the proposed Agreement.

This all has the vague stench of cultural oppression about it - it's a piece of paper being promoted by culturally and economically dominant groups. It empowers state servants to act outside the law and any kind of due process, make judgements about those crossing a border, and perform random search/seize/destroy activities without room for argument. The US will undoubtedly be urging other nations to sign up (or else). Finally, the fact that the Agreement has been drafted with little public discussion and largely kept secret does nothing to allay the sense that there are some serious problems with the way that copyright 'patrolling' is heading.

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Friday, June 06, 2008


Pirates on the high ©s

News from the treacherous waters of online piracy:

The Australian Federation Against Copyright Theft will reportedly be launching a new campaign aimed at school-aged children and teens this month. In an effort to sell the idea that downloading copyright films and television shows is a no-no, children and young people will be encouraged to produce their own films, thereby convincing them that shelling out for a movie ticket and overpriced popcorn is a sign of moral fortitude (and isn’t that the goal of every teenager?).

On the one hand, educating young people about the intricacies of copyright law, and how this affects a fairly normalised behaviour among their peer-groups, is a positive step. Ever-increasing attempts by industry bodies to crack down on online 'piracy', including leaning on ISPs to start dispensing ‘justice’ on industry’s behalf, means that knowing about the potential risks is the best way to enable young people to make informed choices about their online activities.

AFACT also points out that it wants to convey how damaging to local film-making and industry investment illegal downloads can be. This blogger has some sympathy with that point – life in the film and TV industry, particularly in Australia, involves constant scratching for cash and other resources, for all but the biggest players. Continuing investment in the local industry (at all levels) depends on the commercial success of what are usually very expensive, highly speculative undertakings. While arguably it is foreign product that is usually downloaded, the overall profitablity of the sector (here and in the US) impacts how local studios and projects are funded. For example, dwindling attendance numbers at cinemas (which are never the most profitable businesses to start with) leads to rising ticket and concession prices, which leads to fewer screens showing a narrower range of product, leading to greater difficulty in getting local content out to the audience, equalling low regard and even lower funding for Australian film and tv.

On the other hand, however, allowing the message to be watered down to the equivalent of a patronising ‘Stealing is Bad’ is unlikely to move the target audience. Following the laughable In Tune campaign featuring successful musicians discussing life as a struggling artiste, it can only be hoped that the AFACT campaign demonstrates a more sophisticated understanding of its target audience and their concerns. The more emphasis on fact and an understanding of copyright law (and potential risks involved in its contravention), the better.

Still on the subject of incurring the wrath of copyright owners – in May, a US jury handed down a guilty verdict against a man charged with conspiracy to commit criminal copyright infringement. 25 year-old Barry Gitarts was allegedly a member of Apocalypse Production Crew, a group specialising in making pre-release copyright recordings available online as MP3 files for download. Typically, the RIAA could barely contain its glee at the verdict. The potential sentence for the unfortunate Barry includes up to 5 years imprisonment, a fine of $250,000, and making full restitution.

In this blogger's opinion, Gitarts would make a far more compelling poster-boy for any anti-piracy campaign than the Veronicas.

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Tuesday, November 13, 2007


Simpsons Movie Uploader Fined

This just in: Jose Duarte, who filmed The Simpsons Movie on his mobile phone and uploaded it onto the Internet, has been convicted and fined $1000 by Magistrate Pat O'Shane at the Downing Centre Local Court (See Housemate Abi's previous post on the case here). According to a report in the Sydney Morning Herald, Duarte's lawyer argued that his client "had 'the sophistication of a dead fish', when it came to uploading the footage on to the internet." Indeed. Commonwealth lawyers argued, however, that "the potential costs for the film's owners was in the hundreds of thousands of dollars".

It doesn't appear that anything detailed, beyond the report in the Sydney Morning Herald, is up on the Internet about this case yet. More to come as more details emerge.

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Thursday, November 08, 2007


This Is What It Sounds Like When Doves Cry?

There's a new song out on the airwaves by UK electro-pop act Groove Armada where a girl, after breaking up with her boyfriend, is out driving and sings that she's got "Prince singing hot things at me, I know every line." (The song is "Song 4 Mutya") However, Prince fans may find themselves singing a different tune soon.

According to a report in today's online Sydney Morning Herald, Prince "has threatened to sue thousands of his biggest fans for breach of copyright, provoking an angry backlash and claims of censorship." (See the report here) Targeted items include photos, CD covers and lyrics (our title is clearly for the purposes of parody and satire, just so we're clear). This follows the singer's decision last year to hire an Internet company to seek the removal of 2000 videos featuring his songs from YouTube, including one of a baby dancing to his track Let's Go Crazy (obviously inspired by the Dancing Baby from Ally McBeal, I'm sure). However, it's also noted that Prince has done a few things in recent years with the aim of removing the middleman and bringing himself closer to fans, including distributing his CDs with newspapers. So it seems the digital revolution is still causing major problems in the music industry.

Author's Note: This is a bit of a different post - just about copyright and not so much about the commons! We apologise for our lack of posting lately and regular non-Prince related posts will appear soon!

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Monday, August 27, 2007


Draft Guidelines - Copyright Infringement Notice Scheme

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.

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Monday, August 20, 2007



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 Free for Education license or Creative Commons License Creative Commons Attribution 2.5 License.)

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Friday, June 08, 2007


Tintin v. The Copyright Amendment Blob

Bill Leak, cartoonist with The Australian, has been depicting Labor leader Kevin Rudd as Tintin since December 2006. Late last week, Moulinsart, (the firm controlling the copyright of the late Herge, creator of Tintin) based in Brussells threatened to sue Leak over his use of Tintin.

Luckily for Leak, the recently introduced section 41A of the Copyright Act contains a fair dealing exception for the purposes of parody and satire. In light of this, most experts predicted that Moulinsart would not succeed if it decided to take action.

Moulinsart eventually conceded that Leak is free to portray Kevin Rudd as Tintin (yes, the Copyright Amendment Blob won this fight) but threatened to sue if he continued to make the images available for sale via The Australian website (but the war continues). Apparently Leak responded to Moulinstart's letter by saying "I'm not a lawyer, I'm a cartoonist. I poke fun at people for a living. I'm sure Herge would have approved" (source).

A representative for the firm claimed:
"We have no problem with him using Tintin as a parody in his cartoons in the newspaper but when he starts selling them to the public then it becomes more commercial than editorial and he is infringing copyright.... It is passing those cartoons off as something they are not, as something official. He is not permitted to make those sales so we want him to stop doing that and to compensate us for any past sales. Our job is to promote and protect Herge's work and we are very serious about this." ("The Bleak side of Tintin'", The Australian, June 4 2007)
Somehow, I think the many references to Australian industrial relations policy and John Howard might give away the fact that the cartoon isn't quite 'official'. After all, the real Tintin never actually came to Australia.


"Satire, with apologies to Herge", The Australian, June 1 2007
"The Bleak side of Tintin'", The Australian, June 4 2007
"Tintin lives on in Leak'toons" The Australian, June 4 2007

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Thursday, May 17, 2007


Viacom vs. Google, YouTube, Part Deux

You may have seen on blogs and online news forums lately that Youtube released their defence in the Viacom litigation. Dr Matthew Rimmer presents a fantastic overview of the current state of play in this op-ed piece.

A copy of the response from YouTube/Google, filed at the District Court is located here.

Viacom claims that "YouTube has deliberately chosen not to take reasonable precautions to deter the rampant infringement on its site" (see op-ed piece above). Interestingly, on the other side of the coin, 100's of clips from The Chaser's War on Everything were removed from YouTube after a 15 year old boy (claiming to represent the copyright owners) sent a fake takedown notice (read more here and here). Evidently Viacom should save money on lawyers and start investing in an army of high school students.

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Wednesday, March 14, 2007


Viacom vs. Google, YouTube

"Media conglomerate" Viacom has filed proceedings in the District Court for the Southern District of New York against Google and YouTube for what it describes as "massive international copyright infringement." Read more in the Sydney Morning Herald article here.

According to reports, the commencement of the lawsuit by Viacom comes after a "great deal of unproductive negotiation" with Google and YouTube. Let's see if more productive negotiations can occur now, or whether the case makes it before the courts. Sadly, it's cases like this which makes us copyright law-types wait with baited breath.

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Thursday, February 22, 2007


The War of the Blobs

Could this be the case of the Congealed Wobbling Blob of Copyright versus the Andrew the blue blob? Steve Baker, winner of Tropfest (an Australian short film festival), is under scrutiny because of the similarity between his winning entry ("An Imaginary Life") and an American TV series ("Foster's Home for Imaginary Friends").

The characters in both are blue blobs (one called 'Bloo' and the other 'Andrew') and they are both abandoned imaginary friends living among other imaginary friends. The copyright owner of "Foster's Home for Imaginary Friends" is apparently "looking into the matter". Baker claims that he has not seen this American TV series before.

More information is available at Now the Blob is Back and Tropfest and TV Lawyers Scrutinise Tropfest Winner. I haven't seen the American cartoon in question but an article in today's Sydney Morning Herald raises a fine point:

"As the saying goes, good artists steal, bad artists plagiarise. Very few works are original. A writer is influenced by previous writers and in some instances improves on the seminal work." (Lawyers Stir the Murky Depths of Plagiarism)

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

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Tuesday, January 30, 2007


Automated Copyright Infringement?

Andres Guadamuz recently noticed that articles from his blog are being republished in their entirety on apparently purpose-built websites. Now, this wouldn't normally be a problem, because Andres has licensed his whole blog under a Creative Commons Attribution-Noncommercial-Share Alike 2.5 UK: Scotland License.

But in this case, (a) they're not relicensing their web pages, and more importantly (b) they seem to be doing this solely for commercial advantage - the pages are glossed with prominent Google ads. In fact, in Andres' case, I don't think they even realise the content they're stealing is licensed. If you look at some of the other content they've (most likely) stolen (e.g. or they do link back to the original. In fact, this is the only reason Andres found out his posts were being so copied.

So what's going on here? It looks to me like these people have an automated system to download new posts (via. RSS, most likely), and then republish them on random subdomains of Andres suggested that it was a link farm, but I don't agree - I don't think you need content for a link farm, you can just create heaps of pages with no (or random) content and link them to each other. But if it's not a link farm, that raises two questions: If they're doing it for ad revenue, who are they expecting to read the page? And why are they bothering to link back to the originators of the posts, especially given that in doing so they're advertising they're copyright infringement?

I don't know the answer to these questions. In the mean time, it looks like Andres is going to try to enforce his licence, which is to say that he's going to try to get the infringing copies removed from Like I said, I don't think bgtoyou was willfully breaking the licence - I think they were willfully infringing the copyright, but it will be interesting if they do realise, and then try to use the licence as a defense.

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