Copyright What is Legal and what is not (In Australia)

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I was slammed into reality the other day by the fact that a
Solicitor that I have known for many years who dealt in the area of the law
known as Trade marks which falls under the auspices of Intellectual Property Law, got some basic knowledge about
the Australian Copyright Legislation wrong. (No 'P' it's not you and no 'N' it's not you either.)

I don’t think he’s a bad solicitor, I just don’t think the
copyright legislation is very accurate in it’s drafting in regards to the speed of technological innovations and the drafters understanding of those technologies. So for persons who live in a quill pen mentality age, both the the law and computer tech can be a very daunting topic. Especially when the competing topic (IT) has at least as many mysterious acronyms and traps for the unwary, as the law; and of course, I am referring to Information Technology with a specific sub title of Internet Protocol Communications. 

 

As a result, quite often the law lags behind the reality of technology. Some
examples;

 

in the 1969 Copyright Act, it was illegal to have a
photocopier in your home(It has been suggested to nme that this might be incorrect – checking…..)

and for years VCR’s were technically illegal in Australia.

and today (proposed), the DVD writer in your home computer
actually allows police to confiscate the computer because you have an “infringing
device” that can create “pirate” copies. (See references below.)

 

Therefore most Australians are breaking or have broken the
law in some manner.

 

So today I thought I would have a go at the Australian
Copyright FAQ Version II. Version 1 is on the AG site, here.

 

Disclaimer:

I am not a lawyer. This is not legal advice. Readers should
hire a lawyer to interpret my responses before carrying out or relying on any
of the recommendations contained herein.

To be clear, Perhaps I should borrow the words
of the Australian Attorney General’s site:

 

“Therefore, before relying on the material, users should
independently verify its accuracy, completeness, relevance for their purposes
and that it is up-to-date.

Before any action or decision is taken on the basis of
any material on this website the user should obtain appropriate independent
professional advice.

Links to other websites are provided for the user's
convenience and do not constitute endorsement of material at those sites, or
any associated organisation, product or service.”

 

 

 

Question

Answer

Reason

Commonsense

1

I purchased a CD; can I rip my CD’s onto my iPod?                  

Maybe

If it has DRM you maybe in breach of the Law if you remove
the DRM.

You purchased the CD legally. The content owner applied a
morally illegal restriction. Rip-it. The law is morally wrong to restrict
your personal listening requirements.

section 109A

2

I borrowed a CD from the Library/friend, can I rip it?

No

It’s illegal

You know it’s illegal.

3

I rented a DVD from Blockbuster Video – Can I rip it?

No

It’s illegal

You know it’s illegal.

4

I purchased a DVD, can I rip my DVD’s onto my
Computer?      

Maybe      

If it has DRM you maybe in breach of the Law if you remove
the DRM.

You purchased the DVD legally. The content applied a
morally illegal restriction. Rip-it.

The law is morally wrong to restrict your personal viewing
requirements.

Sections 47J and 110AA

5

I have a Foxtel IQ and I time shifted a movie. Can I
transfer it to another device.

Yes.

Timeshifting is permitted provided only residents of your
home address are the beneficiaries of the time/device shifting.

The law says that you may keep the copy for a time, but
not indefinitely. The law in my opinion is wrong and should be

changed. However, a Foxtel IQ hard-disk has a MTBF† of 1,000,000
hours, so I would suggest that you may not keep the copy for longer than 122
years.

Sections 47J and 110AA

6

I want to download a copy of of my favourite TV show from
tvu.org.ru because it’s not yet available in Australia.

Don’t do it. Look for a site that streams the content legally.

It’s illegal

You know it’s illegal.

7

I want to capture an analogue copy of a video that is
legally streamed on the internet

Maybe

Currently it is technically illegal.

Sure. If it’s for personal use for members of your
immediate family in the house within you reside.

8

I want to capture some TV programs off Channel 7 and
remove the adverts with VideoRedo and keep it on my media player so that
anyone at my home can view it.

Sure

Legal

See commonsense comments in 5 above.

9

I have an iPod/iPhone full of music. I regularly attend
parties and we hook the device upto the stereo of wherever we are and let the
music forth…

Nope.

It’s a public broadcast.

Do it anyway. The Act was not designed for this type of public
broadcast restriction.

10

Why can’t I download movies via torrent when they are
legally available via legal online streaming sites?

I don’t know.

But you can’t.

So Don’t. But write a letter about it to sam.ahlin@ag.gov.au

If the Government don’t know there’s a problem, they won’t
change the legislation.

(Actually, I have written to Sam and received a helpful
and responsive answer, so he’s approachable.)

11

I’m an amateur film-maker and like to remix scenes from
movies to tell a story. I then like to share the results with my friends via
Youtube

Maybe.

Depending on how much of the movie you use

A better idea would be to remix only from Public Domain
videos.

Start here:

publicdomainflicks

12

I use BitTorrent because it’s faster than the Web, what
can I download with BitTorrent?

Anything that is marked Public Domain or GPL maybe
downloaded with BitTorrent.

It’s Legal

Try this site:

publicdomaintorrents

 

There are a number of Public sites on the Internet full of
legally available content.

The number of PD films and music available via the internet
is about to grow dramatically with artists, actors, directors and producers
serving  copyright termination notices.

 

Why?

 

Well we have to look at the worlds main content creator to
understand that, the USA.

 

In 1976, the US Congress gave creators of movies and music
the right to terminate their copyright agreements. These rights allow the
original creators to serve notice on the publishers to terminate the copyright
grant.

 

What does THAT mean?

 

OK, it’s simple, when a new artist or filmmaker creates a
work, he needs marketing to ensure it’s success. He/she normally assign their
rights in the copyright to obtain financing by a major label or studio so that
the work can become successful. Those rights are now slowly coming to an end.

 

35 years from 1976 is 2013. Which is the year that we will
start to see the BIG lawsuits. Hollywood
of course doesn’t want to see the end to their ownership of their libraries so
will doubtlessly fight each and every copyright distribution termination
notice.

 

So all this legislation is really about Hollywood
tying up the assets before the floodgates are open in four years time.

Yep. It’s not about ensuring new content, it’s about
corralling keeping and milking the old.

Our legislators need to understand that very few of them will ever grasp the speed of techological change. Well until the current milleniumites become legislators. Until then, the only hope that copyright legislation has of keeping up with reality is open and complete discussion with the public. Not in hiddden away unadvertised meetings



Upcoming event worthy of Mention.

 

Copyright Symposium 15 & 16 October 2009

 

What: 14th Biennial Copyright Law and Practice Symposium
(hosted by the Australian Copyright Council and the Copyright Society of
Australia)

When: 15 & 16
October 2009
Where: Art Gallery
of NSW, Sydney

Details of symposium here

Book
Here

 

Glossary:

†MTBF Mean Time Between Failure, usually an indication of
how long the manufacturer considers the disk will operate.

 

References:

 

The Australian Attorney Generals Page on Copyright

http://www.ag.gov.au/www/agd/agd.nsf/page/Copyright

 

Draft Copyright Infringement Notice Scheme Guidelines – PDF
239KB

Specifically:

 

‘infringing device’      

19. The term ‘infringing device’ is defined in the Copyright
Amendment Regulations 2006 (in relation to an offence of strict liability
against a provision of Division 5 of Part V of the Act) to mean ‘a device that
is alleged to have been made to be used for making an infringing copy of a work
or other subject-matter and that is alleged to have been involved in the
commission of the offence’.

20. Example: This could include a DVD burner in some
circumstances.

 

Copyright Battle Comes Home

Eriq Gardner IP Law & Business – October 08, 2009

http://www.law.com/jsp/cc/PubArticleCC.jsp?id=1202434372952&pos=ataglance



Hat tip to Bruce Arnold for the correction on Trademark and possibly the Photocopier machine reference being incorrect.

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