Thursday, October 12, 2006

Put Another Copyright Act on the Barbie, Mate

The Austrialians, makers of excellent wine and all around great folk, are in the midst of a copyright revision process. Here is a link to materials dealing with one aspect of that effort, "Exceptions and Other Digital Agenda" items. The process is worth following as an indication of how fair use and Internet issues are dealt with a fairly mature environment (relative to say 1976 or even 1998). Here is a brief summary of some of the issues from one of by favorite blogs, Kim Weatherall's (the link here takes you to a fuller discussion):

The Private Copying (Time-shifting and Format-shifting) Exceptions

The Bill has exceptions for two kinds of private copying: time-shifting, and format-shifting.

Time shifting is of course where you that is, tape a broadcast (radio or television), at home, for their private and domestic use, to watch or listen at a more convenient time. Good to see that they didn't persist with the 'watch once only' condition....

The format-shifting exception is more complicated. The idea is to allow private copying into different formats. Now, if you think about it, there are two reasons you might want to do that. you might want to format shift in order to 'space shift' - that is, have a private copy to carry around instead of the original hard or CD form, right? Like put it on your iPod. Or, you might want to format-shift because a format has become obsolete, and you want to move your collection to the new format (vinyl records to CDs, for example).

Which is the focus here? The explanatory material refers to both possibilities. But let's have a look at the conditions on format shifting:
  1. You can't do just any old format-shift. You can copy from books to any other format; from photographs from electronic format to a hard copy, or from hard copy to electronic; sound recordings from CDs, tapes, records, digital downloads to any other format (not podcasts); or films: from video to electronic format.

  2. You can't make a copy from a borrowed, or pirate copy: it has to be your, legitimately purchased or owned material

  3. You can copy only for your own 'private and domestic use'

  4. You can only make one copy in any given format (eg, one MP3 copy, one digital copy of a VHS film)

  5. You can't make 'serial' copies - ie further copies from your format-shifted copy.

  6. You can't sell, hire, etc your format-shifted copy.

Now, if this were a true 'space-shifting' exception, the condition that you can only make one copy in any given format is a bit awkward. As a student last week asked - does that mean if you make an MP3 copy, to put on your iPod, you can't also keep the MP3 on your laptop? The answer would be yes. Which is kind of inconvenient, if you are the type who doesn't always carry your iPod around, and uses their laptop as a source of music too. But if it were really a 'obsolete formats' exception, it's not clear that the prevention of serial copying makes all that much sense - surely you should be able progressively to copy your collection from format to format, as they come up. And surely, of course, you would have a condition that related to obsolescence of the format in some way.

Thus the thrust of the government's format-shifting exception is, in some ways, an uneasy compromise between these. Given the focus on iPods in the Inquiry (people were calling it the iPod inquiry, colloquially), it was important that the format-shifting exception attempt in some way to cover that activity. However, the exception can be justified in policy terms more readily on the basis of a need to shift from obsolete formats. If this exception ends up getting challenged, it will be interesting to see what the main justification put forward is - and whether it is accepted by an international tribunal, given the mix of motives apparent from the conditions imposed.


Crosbie Fitch said...

"Perhaps if we explicitly permit the infringements that we can't hope to detect, let alone control, the public will tolerate even more draconian punishment against those wicked families participating in file-sharing?"

This is like prohibitionists deciding to permit private consumption of alcohol as long as it occurs only within someone's private domicile, and only by the permanent residents thereof.

You've really got to ask yourself: Is this change going to fix things such that copyright will survive another decade without requiring further relaxation?

Something has to be abolished: A) The Internet, or B) Copyright.

Pick one.

William Patry said...

I think that's part of the interest in the Australian endeavor: most of our rules (say fair use) were formulated at least in a general way long before the Internet and we have therefore been trying to update them in a common law way, i.e. by court cases. The Australians are doing it legislatively, where views beyond those just of litigants can be heard.

Brian Sniffen said...

It seems like it doesn't allow iPod use for two reasons: serial copying and multiple copies in a format. Further, it confuses two parts of format, mixing coding with medium. MP3, Apple's AAC, and WAV are codings. They are representations of audio data. Plain-text, HTML, and Word Doc are codings also. CDs, Hard Disc Drives, and paper are media. I can put a work in most codings on most media---though some are more efficient than others. It does little good to print an MP3 on paper.

It also does little good to print a Word Doc on paper---I have to use the Word program to translate from that coding to a coding understood by the printer, then transmit that. The coding on the paper is Formatted English Text, more or less.

Sometimes we pair a coding with a medium and call it a format. One such pairing is CDDA, Compact Disc Digital Audio. That's a WAV file on a CD, more or less. We might consider MP3-on-iPod to be a format also. But it sounds like they're considering all MP3s to be one format.

So what happens when I copy a song from a CD or tape to my iPod? First it's raw audio on a CD. I use a program to rip that, copying the raw audio into my computer. Then I use a new program to copy that, shifting the coding from raw-audio to MP3. Now I run a new program to copy this MP3 to my iPod. At the end, the MP3 on the hard drive and the MP3 on the iPod persist. Apple's iTunes program manages all these three copyings and the coding shifts, but they're there.

Anonymous said...

The desire to expand exceptions is another confused reaction to technological development. If you expand exceptions, you are removing from the marketplace precisely the fine adjustments of demand and supply that technology, in particular, DRM, allows.

Anonymous said...

I'm in favor of allowing exceptions that don't affect the market for the work, or take away the ability of the artist to create (and sell) derivative works in new formats. So "time-shifting" seems perfectly okay to me.

"Format-shifting," however, forever condemns the artist to choose one format at the outset and forgo all income from alternative formats, since the users are free to shift the work to others, even if they're limited to one copy per format (how many copies in other formats is the average user going to buy, anyway?). Why should a book author, for example, have to give up all potential income from an e-book version if the book is first published in print? And why should self-published authors, who might prefer to start out with an e-book, have to then lose a large portion of control over a later print version? In the short term, format-shifting allows the creation of multiple formats, but in the long term seems certain to stifle commmercial development of simultaneous publication in several formats. That doesn't serve either artists or the public.

Anonymous said...

Is it really a bad thing for "artists" (actually, usually corporate publishers, with the artist themselves getting only a pittance) to be denied the opportunity to charge the same person multiple times for the same material, just because the formats have become obsolete? Like, for instance, selling somebody the same songs on 78, 45, and 33 1/3 RPM records, 8-tracks, cassettes, CDs, MiniDiscs, Audio DVDs, and digital downloads.

Anonymous said...

great blog, greetings from France...

Anonymous said...

great blog, greetings from France...