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After a start delayed by rain, NSW’s bushfire season got underway this week, and unlike previous years, there were no copyright objections raised against Google putting bushfire incidents on a map.

I mention this because over at the DBCDE's Convergence Review, copyright is all the rage. The Department of Broadband, Communications and the Digital Economy is accepting comments on the terms of reference for the review (which would look at broadcasting and other legislation as “convergence” nears the end of its 20-year gestation. Which moved slower, the government or the market?).

(CA is keen on monopolies: it enforces them rigorously, whether you’re buying food and drink, own a video camera, or seek accreditation as a photographer without belonging to an agency with a contractual relationship with CA).

Or, as Screen Producers of Australia put it, “The future strength of Australia’s production sector, its capacity to innovate and deliver on cultural programming will be directly impacted by the policy settings recommended from this review.”

(As distinct, for example, from the production sector meeting its historical challenge of producing Australian movies that aren’t (a) dreadful, (b) desperately earnest, (c) cringingly Aussie, or (d) all of the above.)

A lesson in shouting

Such organizations had, at least, the good grace to welcome the review and welcome its terms of reference. For affronted, howling outrage, you need to head for the submission by AFACT.

The Association Federation Against Copyright Theft – a kind of catspaw for US producers – sued iiNet to try and erode ISPs’ “safe harbour” protections against such cases, and upon its failure, is now appealing. It has loudly demanded network disconnection for accused copyright infringements, and in its submission to the Review, continues to pursue its philosophy that “the best defence is to yell louder.”

A little note on Australian administrative arrangements is in order here. The DBCDE is responsible for things like broadcasting services regulation, network regulation, and content regulation (such as rules surrounding Australian content quotas, Internet content classification and so on). The Copyright Act is administered by the Attorney-General’s Department.

As a result, the DBCDE’s “Convergence Review” is written from the point of view of casting legislation and regulations that are within that department’s remit – which doesn’t include copyright. The terms of reference acknowledge the limits of “the Minister’s portfolio responsibilities” and indicate that the government may be advised on matters outside this scope.

Further, the background to the terms of reference states the Acts that are under review: the Broadcasting Services Act, the Radiocommunications Act and the Telecommunications Act – not the Copyright Act. However, in the accompanying documents, the review committee is permitted to “make recommendations that impact on copyright law”. The terms of reference are as broad as possible.

Finally, there’s the matter of current copyright policy. The government – particularly the Attorney-General’s department – is well aware that a review of the Copyright Act might be a good idea. However, as noted in Telstra’s submission, current advice to the A-G is that it await the outcome of AFACT’s appeal against the iiNet judgment last year before proceeding*.

Does this prevent fulminations from AFACT? Of course not. Completely ignoring the explicit statements that the review committee has permission to raise copyright issues, the moguls’ club’ submission, complete with ransom-note font effects, spanks the DBCDE for confining its own terms of reference to its own responsibilities. AFACT castigates the terms of reference because they ignore the domestic and international copyright framework (the A-G, note above); international trade treaties are ignored (a Department of Foreign Affairs and Trade matter), and the “legitimate rights and expectations of providers in the content supply value chain”.

It may well be that technological convergence crosses departmental boundaries just as much as it crosses international boundaries, but AFACT’s belligerence invites dismissal.

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