Original URL: http://www.theregister.co.uk/2011/02/02/afact_and_others_convergence_review/

Content owners lock arms in front of Aus content review

Belligerence may backfire

By Richard Chirgwin

Posted in Law, 2nd February 2011 21:00 GMT

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?).

Cricket Australia, just one of the organisations that has so far made a submission to the Australian government’s Convergence Review terms of reference, fears that “for all the social value” it (and other sports) generates, the “economic value … becomes eroded due to inadequate legislative protection and the proliferation and unrestrictive nature of convergence”.

(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.

An orderly queue

Following in AFACT’s footsteps, but with quieter tone, the Australian Performing Rights Association (APRA / AMCOS, which stands for Australian Mechanical Copyright Owners Society – think elevator music) asked only for the insertion of the word “protect” or “protection” in terms of reference paragraphs referring to content distribution; and said that “deliver the broadest range of content” should instead say “deliver the broadest range of legally available content” (original authors’ emphasis).

Given that it’s already illegal to deliver content that’s not legally available … but such arguments become recursive to consumers and don’t help us understand how content owners think. However, because we’re talking content industry here, “legally available” has a special meaning. It’s not about whether the content is refused classification (and therefore illegal), or that it might be defamatory (and therefore illegal), or misleading and deceptive (and therefore illegal): to APRA / AMCOS, “legally available” content means only “licensed and remunerated”.

The moguls, united, will never be defeated!

With a blueprint to work from, is it any surprise that the next leg of the motion picture stool was cut to the same length? ASTRA, which represents the Pay TV business, also highlights copyright, saying in its submission that “copyright is a critical issue that must be considered as part of the review”. In a nod to News Corporation’s foaming, pathological detestation of public broadcasters, ASTRA also said that the convergence review should “consider the role ongoing role” of publicly-funded broadcasters.

(As I write this, a cyclone approaches Far-North Queensland; our public broadcaster, the ABC, has devoted a digital radio channel to 24-7 cyclone coverage, is streaming a dedicated Internet channel, and has removed geolocking from the channel so it can be viewed worldwide.)

Joining arms with the moguls and the musicians is the Copyright Council, which has decided that the stated ability of the review to go outside the three Acts mentioned is insufficient. Even though the review already has the ability to advise on copyright (since this is permissible in the terms of reference), it requests (with fewer capitals, underlining and bold fonts than AFACT used) that “all legislation and regulations relevant to these Terms of Reference” be appended with “including copyright” (original author’s emphasis).

And so on, until the pattern emerges.

Australia’s Copyright Act has, according to the content industries, proven inadequate to the task of protecting copyright. When the industry decided to try and get a court to dismantle iiNet’s defence under the Act’s “safe harbour” provisions, it failed; and the industry’s appeal against that ruling is the road-block to any new copyright policy formulations at the moment.

“As recognised in the Attorney General Department’s incoming government brief, policy reform in this area should desirably await the definitive conclusion of … litigation” (between AFACT and iiNET), as Telstra stated in its submission.

The nugget of fact Telstra has highlighted is this: for all their sound and fury, the copyright owners, their sock-puppets and catspaws, wrote their submissions in full knowledge that the government has already been told “leave the Copyright Act alone until AFACT vs. iiNet is decided.”

The shouting from content owners probably won't change the government's current stance. They will have only themselves to blame if AFACT's belligerence is ignored. ®

*In Roadshow Films Pty Ltd & Ors v iiNet Limited (Wikipedia page here), commonly called “AFACT vs iiNet”, the industry argued that iiNet’s lack of enforcement of copyright invalidated its safe harbour protections. The Federal Court disagreed, and the plaintiffs have appealed.