A-G’s Copyright Fact Sheet Misleading?


A-G’s Copyright Fact Sheet Misleading?

This started out as a post about the unjustifiably high cost of cartoon episodes on iTunes…

We received an iPod touch as a gift last year.  We decided to have a look at downloading loading some episodes of SpongeBob onto it from iTunes.  The price? US$3 per episode (about AU$3.30). Incidentally we could only find two episodes available (but that may be because we’re iTunes illiterate).  Compare that to the price per episode on a (much higher quality) DVD – about AU$2/episode (AU$20 for 10 episodes, or, in some cases such as older season DVDs, even more episodes).

So, where does the AG’s Department come into it?   What annoyed me was that way that the A-G’s department,  in its explanations of the 2006 amendments seem to go out of their way to avoid mentioning the bad aspects of the law on three things:

Can I still sing Happy Birthday in a public place?

Yes. Even if the words or lyrics to Happy Birthday were still in copyright in Australia, simply singing it in public would not be enough to attract criminal liability. There are no on-the-spot fines for this conduct.

If Happy Birthday is out of copyright, then singing it is not a problem, but the impression this gives is that it is legal to sing in-copyright material in a public place.  There is a public performance right which prohibits this and it gives rise to civil (not criminal) penalties.  So the activity is still illegal.

Rating: poor

Is it an offence for a 14 year old to record himself or herself lip-synching a pop song and post it on the Internet?

Recording yourself lip-synching a pop song may mean that you are making an unauthorised copy of the sound recording. However, posting the recording on the Internet will not in itself constitute a criminal offence.

If the recording is posted for the purposes of trade, it may amount to a criminal offence and be subject to an on-the-spot fine.

What it doesn’t say is that it is an offence for a person to “engage in conduct” which “results in one or more infringements” of a work and “the infringements have a substantial prejudicial impact on the owner of the copyright” and the “infringements occur on a commercial scale“.   Unlike normal criminal law where you have to intend your action (the main exceptions being drug possession and negligent illegal homicides – ie manslaughter) all you have to be is negligent as to these facts.   In fact, you apparently don’t even need to intend that the conduct will result in the infringements (so if you walk down the street and it gives rise to these consequences you’re apparently caught).   Given that courts have been somewhat… generous… when entertaining what comprises damage to a copyright owner even the substantial prejudicial impact point seems not difficult to satisfy.  There must be at least a non trivial risk that that lip-syncing 14 year old would end up in jail for up to 2 years (5 years if they have the requisite criminal intent).

Rating: dangerous

Will I be able to format-shift other kinds of copyright material as well as sound recordings?

Yes. You will also be able to format-shift copy some other copyright material such as books, newspapers, magazines, video tapes and photographs. You will not be able to format-shift a computer game.

The elephant in the room here is DVDs.   Computer games are specifically mentioned, but for DVDs it’s All Quiet on the Western Front.  While I’m sure that there are some people who are interested in format shifting ‘books, newspapers, magazines, video tapes and photographs’ I suspect that what the vast majority of people want to do is format shift DVDs onto their home media servers.

This is where format shifting comes into it. The relevant section is  section 110AA.   It permits people to format shift a “videotape” (not defined as far as I can tell) in “analog format”.   Maybe section 110AA permits format shifting from DVD to iPod, but if so, it would benefit from clearer wording.  If shifting a DVD to iPod is illegal, then the Australian Parliament ought to answer to the Australian consumer for the price gouging it is encouraging.  Ironically, in so doing it’s shifting tax revenue overseas if people are forced to buy from a foreign service on line rather than supporting local DVD store shopfronts.

Rating: disappointing

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