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c/o Professor Brian Fitzgerald Queensland University of Technology Gardens Point Campus Brisbane QLD 4000 Committee Secretary Senate Legal and Constitutional Affairs Committee Department of the Senate PO Box 6100 Parliament House Canberra ACT 2600 Australia Dear Secretary COPYRIGHT AMENDMENT BILL 2006 We, the below signed, are writing to express our concerns with the Copyright Amendment Bill 2006, which was introduced to Parliament on 19 October 2006, and the process by which the Government i
  c/o Professor Brian FitzgeraldQueensland University of TechnologyGardens Point CampusBrisbane QLD 4000Committee SecretarySenate Legal and Constitutional Affairs CommitteeDepartment of the SenatePO Box 6100Parliament HouseCanberra ACT 2600AustraliaDear Secretary COPYRIGHT AMENDMENT BILL 2006 We, the below signed, are writing to express our concerns with the CopyrightAmendment Bill 2006, which was introduced to Parliament on 19 October2006, and the process by which the Government is seeking to pass the Bill aslaw.If passed in its current form, this Bill will substantially shift the balance struckby current copyright law in favour of copyright owner interests, to thedetriment of consumers. It seeks to introduce broad-ranging amendments tothe Copyright Act 1968  which will bolster the power of copyright intereststhrough the introduction of a series of new criminal offences and the extensionof prohibitions on circumventing technological locks. These significantchanges are ostensibly “balanced” by the introduction of a number of narrowlydefined new user rights. Yet other changes introduced by the Bill actuallyreduce the scope of the existing fair dealing exception for research and study,arguably the most important and commonly used of the current exceptions.To compound these problems, the Bill is being rushed through Parliament in amanner which does not allow for adequate public scrutiny of the proposedchanges, despite the fact that there is no justification for the rushed timetablein relation to the vast majority of its amendments.Our concerns with the Bill are set out in full in the document provided atAttachment A. However, in summary, our principle comments are as follows: ã The elements of the Bill that do not relate to Australia’s commitmentsunder the Australia-United States Free Trade Agreement (AUSFTA) – ie the elements that do not relate to technological protection measures(TPMs) – should be excised from the Bill and re-introduced toParliament at a later date when adequate public scrutiny and debatecan be afforded; 1  ã at the very least, the new “low bar” criminal provisions should not beintroduced until a full debate has occurred as to appropriateness ofapplying broad criminal offences, and in particular offences of strictliability, to copyright infringement; ã the definitions of TPM and access control TPM included in theexposure draft should be reinstated, to ensure that a clear link remainsbetween devices protected by copyright law and the prevention orinhibition of copyright infringement; ã a provision should be inserted into the Bill that stipulates that anagreement that seeks to exclude or limit the operation of the defencesto the TPM provisions has no effect; ã the proposed restrictions on the already narrowly defined fair dealingexception for research and study should be removed; and ã the language of the user rights provisions (eg the exceptions for formatand time shifting, parody and satire etc) should be simplified andaligned with the existing fair dealing provisions.The Copyright Amendment Bill 2006 will substantially affect the rights ofAustralian consumers. We trust the concerns that we outline below will betaken into account in your consideration of the Bill.Professor Brian FitzgeraldHead of Law SchoolQueensland University of TechnologyJessica CoatesProject ManagerCreative Commons ClinicARC Centre of Excellence forCreative Industries and InnovationQueensland University of TechnologyNic SuzorInstitute for Creative Industries andInnovationQueensland University of TechnologyDamien O’BrienResearch OfficerSchool of LawQueensland University of TechnologyBjorne BednarekResearch OfficerSchool of LawQueensland University of Technology 2  ATTACHMENT ASUBMISSION TO THE HOUSE OF REPRESENTATIVES STANDINGCOMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS INQUIRYINTO PROVISIONS OF THE COPYRIGHT AMENDMENT BILL 2006Professor Brian Fitzgerald, Jessica Coates, Nic Suzor, Damien O’Brienand Bjorne BednarekProcess The Government is seeking to introduce this 213 page Bill via a processwhich allows little time for the public to understand, let alone commentthoughtfully upon, its extremely complex provisions. Exposure draftscontaining some of the proposed amendments (including the TPMamendments and the exceptions to infringement of copyright) were releasedover the last few months; however, large sections of the Bill have neverbefore been seen by the public. Even those sections that were releasedpreviously have been subject to fundamental changes in the interim, withoutany explanation as to the reasoning behind these changes or the release ofthe public submissions on the exposure drafts that might have motivatedthem.The Government justifies this shortened timetable with reference to Australia’scommitment under the AUSFTA to amend the law in relation to TPMs before 1January 2007. Yet this commitment does not extend to any of the otheramendments included in the Bill. Furthermore, there is no necessary linkbetween these other amendments and the TPM amendments that wouldrequire them to be introduced simultaneously – as is demonstrated by the factthat the TPM amendments were released as a separate exposure draft on 1September 2006. We therefore submit that the elements of the Bill that do not relate toAustralia’s commitments under the AUSFTA – ie the elements that donot relate to TPMs – should be excised from the Bill and re-introduced toParliament at a later date when adequate public scrutiny and debate canbe afforded.New criminal laws – Schedule 1 to the Bill The proposed amendments to the criminal provisions of the Copyright Actserve to substantially “lower the bar” in relation to criminal liability for copyrightinfringement in Australia, and in doing so greatly increase the chances ofconsumers being held criminally liable for everyday behaviour. Theseprovisions include the introduction of: ã strict liability offences that can result in fines of up to $6,600 withoutany requirement to prove that the person had any intent to infringe, orindeed any knowledge that an infringement was occurring; and ã summary offences (ie court offences tried without a jury) with penaltiesof up to two years in jail where a person is merely “negligent” as to theiractions.    Even more concerning is the application of such easy-to-establish offences tovaguely worded actions which include no commercial or commercial-scalerequirement such as: ã “distributing an infringing copy in a manner that affects prejudicially theowner of copyright” (s132AI); ã “possessing a device for making an infringing copy” (s132AL); or ã “causing a work to be performed in a place of public entertainment”(s132AN).Add to this remodelled evidentiary presumptions that favour copyright owners(see the Bill, Schedule 2 - Presumptions), and these provisions have thepotential to result in criminal penalties being applied to the actions of everydayAustralians in homes and businesses across the country on a scale notpreviously witnessed.Actions that will potentially be punishable under these new provisions include: ã a 14 year old girl videoing herself lip-synching to her favourite pop tuneand uploading this to a video sharing website such as YouTube; ã a 15 year old giving copies of a CD to her friends in the playground; ã owning a computer that you use to copy music onto both your and yourson’s iPod; ã playing a radio in a park that is used for public entertainment; ã possessing a radio that you plan to play in a park that is used for publicentertainment; and ã possessing a video tape on which you plan to tape a televisionprogram to lend to a friend.Some of these acts may in theory fall within the scope of the existing criminalprovisions of the Copyright Act. However, these existing provisions all requirecostly court proceedings to be brought, and place far higher burdens of proofon copyright owners by requiring them to prove that the person in questionwas acting “recklessly”. These factors serve as natural barriers to theapplication of the current criminal provisions, which act to counter the broadlanguage of provisions and prevent their use against private individuals actingin an ordinary manner. Under the new provisions no such barriers will exist.The ramping up of criminal responsibility for copyright infringement follows atrend most explicit in the US of prosecuting and jailing copyright infringers.This is a major shift for copyright law which has traditionally remediedinfringement with civil liability, such as damages. The criminalisation ofcopyright infringement which has been evolving over the last few years makessense with regard to organised crime syndicates producing and selling largequantities of CDs and DVDs. However, it seems outrageous when we think ofthe possibility of a 14 year old child being labelled a criminal for distributing aninfringing copy of a song in a way that “affects prejudicially the owner of thecopyright”. 4
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