1

Australia Has Copyright Laws – Flouting them Deters Innovation and Creativity.

posted by Scott Kane on Monday, September 7th 2009

The Intellectual Property Problem

affects just about every small business in Australia today, particularly if you have a website.  The goodwill in your business is a form of intellectual property too.

It’s a matter ignored by politics and poorly understood in the community.   It is also a highly emotive issue, both for and against.

But it is an issue Australia can ignore no longer.

This is not going to go away and involves crimes that touches  each and every one of us.

To avoid the inevitable and irrelevant discussion on the nature of the crime, let me make this  perfectly clear.

Every country in the Berne Copyright Convention – and yes, Australia is a signatory – has copyright laws.  While these laws vary slightly,  they are consistent in respecting creativity and innovation.  Generally, using works – including everything in the digital domain – without the permission of the owner:

1.  Is a criminal offence.

2.  Infringes or violates the rights of the owner or creator of the work.

3. Can lead to  jail or large fines or both.

4. Allows the holder of the work at their option to seek damages using civil law for loss or hardship, and to institute criminal proceedings.

So, the law internationally sees it consistently as a violation or infringement of rights if any person uses or takes items so covered without permission of the copyright owner.  This includes: books, movies, music and software, poetry, photographs, images, data in some instances, substantial text, paintings, sculpture, pottery and so on.

Copyright in Australia requires no registration and exists from the moment of “creation” of the work.  This is regardless of whether a copyright notice is placed, claimed or referred to and regardless of whether or not the © symbol is used or displayed, unless the owner specifically states in writing that such rights are waived.

For the lovers of semantics the reference to “substantial text” can be applied to any body of work, regardless of it’s perceived quality.

Glib comments disparaging the quality of a work and concluding therefore it has no protection under copyright are merely childish.

A sentence is not copyright – though it may be covered by Trademark – whereas an article such as this is automatically extended copyright cover.

Organized Crime

Iincreasingly, individuals illegally downloading content with file sharing tools like Limewire, Kazaa and torrent tools like Azureas are being detected and prosecuted in the United States, the United Kingdom and Germany.  It is only a matter of time before prosecutions become more common in Australia.  The stakes (and the losses) are too big for companies and individuals producing intellectual property to ignore.

An ironic benefit, to the average person, from this enforcement is that by not using tools such as these they limit their exposure to viruses, trojans and malware which literally fill the services that offer cracks, keygens, serial numbers (often written serialz) and circumvention of DRM – Digital Rights Management, all of which aid in the copyright circumvention of owned music, video and software.

It is not illegal to have these downloading tools on your computer.  They do in fact have legal and valid uses.

But it becomes illegal when they are used to access items without the permission of the copyright holder.

That many of the circumvention tools – cracks, keygens etc – are created by organized crime groups such as the Russian Business Network or RBN is also significant.

The Arguments Against Intellectual Property Protection

Objections to copyright protection seem to be most strongly voiced by those who hold no creative works.  Whereas those who do and are affected are among the most passionate supporters of copyright law.

Most arguments against IP revolve around semantics.  Every time the topic is discussed, it seems, its critics throw out:

1. “It’s not theft because nothing tangible is stolen”.

2. “It’s not piracy, piracy means rape and plunder at sea”.

3. “Software is different to music and films”

4. “The statistics for IP infringement are wrong, I do not accept them.”

On the last point they generally refuse to produce any evidence to back up their dismissal of evidence.  Then they move to announcing they’ve “won the argument” by resorting to their first point.  This is circuitous logic.  It becomes infantile to debate this when they insist on using these arguments  – which is entirely the point of them using them.

The first three points are entirely irrelevant.  It’s the act that is illegal and remains illegal no matter how desperately one tries to align it to other crimes – comparing apples to oranges is simply futile.

With point four – software is no different to music, movies, books or art.  It meets the requirements of the Berne Convention and the individual laws of countries that apply it – such as Australia.

To argue about a magical perceived “difference” is to divert the argument – a rather common technique employed by people on shaky  legal ground.  This argument does not hold up in a court of law.

The simplest argument for justifying the protections of  Copyright Law, for which one never receives a reply (with the possible exception of those who burst into expletives in rage) is -

“As soon as you and everybody else goes to work for free, and that doesn’t include a government pension, and manage to eat, pay for a roof over your head and care for your family I’ll consider the possibility of doing the same.”

This infuriates opponents as they are being asked to do exactly what they demand of those who make a living through the creation of intellectual property.

In other words “putting their money where their mouth is” or “eating their own dog food”.

Those who claim “Intellectual Property wants to be free” are operating under a severe deficit.  They don’t really believe this though.  It’s merely a way to  express a socialist doctrine: that the creative process should not be a business endeavor.   An inverted piece of socialism that borders on anarchy.

The Need For Intellectual Property Protection

It doesn’t matter whether you’re creating paintings, pottery, books, magazines, movies, music or software, individuals  need strong and  enforced copyright laws and in specific instances patent protection.

Without those laws and their committed enforcement no one can make a living on the Internet – the commerce channel of now and the future.

In practice, our legal system is soft on intellectual property prosecution.  It does not always recognise the extent of the problem of intellectual property violation online.

In order for these protections to work, our court system must enforce the law and its reparations.

If the court system treats it lightly the community will too.  If a crime is free of consequences, then the seriousness of the crime is diminished.

Simply put there is no data these thieves are prepared to accept.  Not past, present or future.    Copyright holders, small businesses and large cannot have a reasonable, logical discussion with them while the antagonists of copyright law engage in this stupidity.

But make no mistake here.  They do not give a flying fig for you, your family or small business – including your children and your children’s children should they choose to earn an honest living through the creation of intellectual property.

A Concern For All Australians

Copyright protection affects us all, whoever produces the material.

We are entering an era where the internet plays an enormous role in the economy, much bigger than now.

Unless the work of those who make the things we use are properly rewarded, the collective possibilities of the internet will be permanently diminished.

Small business and individuals – too small to influence government and the opponents of copyright laws – who do not have recourse to a legal system to ensure their right to earn a living will have to seek employment in other fields.

That means the end of new music, videos, art, software and books.

Creators do have to eat.

Current Penalties

For readers who do not appreciate that stealing creativity is a crime, below I have reproduced two extracts from Copyright Australia as a brief introduction and by way of conclusion to this article.  I have merely scratched the surface of this matter.  It is deep, complex and worthy of further consideration.

The extracts below link to further documents.  I highly recommend you read them.

Note that in at least one instance an Australian citizen was extradited to the United States for copyright infringement.

“Penalties vary, and depend on whether it is an individual or a corporation that is convicted. For some indictable
offences, an individual who is guilty may be fined up to $93,500 or imprisoned for up to 5 years, or both. For
importation of material that infringes copyright, fines of up to $71,500 and/or imprisonment for 5 years may be
imposed on an individual. Penalties can be much higher where the infringement involves the digitisation of
copyright material from hardcopy (for example, from cassette to CD or from video to DVD). An individual who is
found guilty of a summary offence may be fined up to $13,200 or imprisoned for up to 2 years or both.
A corporation may be fined up to 5 times the amount of a maximum fine.
Where an individual is convicted of a strict liability offence, the maximum penalty is $6,600. However, where police
issue an infringement notice, the maximum amount of the penalty for an individual is $1,320. In some cases, the
offender must have already forfeited infringing copies and illegal devices to the Commonwealth. Some of the
benefits of the infringement notice scheme include that, so long as the infringement notice is not withdrawn and
the offender complies with the other requirements of the scheme, the offender is not taken to have admitted
guilt, nor to have been convicted of the offence, and no prosecution can be brought in relation to it.
Where a matter goes to court, courts can order that circumvention devices, infringing copies, and devices and
equipment used to infringe, be destroyed, or handed over to relevant copyright owners, or otherwise dealt with.
Again, for acts that took place before 1 January 2007, you will need to refer to the provisions of the Copyright Act
that applied before that date.”

“Circumventing technological protection measures
“Technological protection measures” (TPMs) are technological mechanisms used by copyright owners to prevent or
inhibit either or both:
• unauthorised access to copyright content (access-control TPMs); and
• unauthorised use of copyright content (copy-control TPMs).
The Copyright Act includes sanctions against manufacturing, importing and supplying devices and providing services
to circumvent copy-control TPMs. There are also sanctions against:
• circumventing an access-control TPM;
• manufacturing, importing, or supplying a device to circumvent an access-control TPM; and
• providing a service to circumvent an access-control TPM.
Sometimes a copyright owner can take court action against people who do these things, and sometimes this
conduct is a criminal offence where action is taken on behalf of a State or Territory, or for the Commonwealth. The
sanctions implement Australia’s obligations under the AUSFTA, which requires more extensive protection for TPMs
than was provided in Australia before 1 January 2007.
There are limited circumstances in which a circumvention device may be legally manufactured, imported or
supplied, or in which a circumvention service may be provided. These circumstances are much more limited now than
they were pre-2007. The new provisions also allow a person to circumvent an access-control TPM to get access to
copyright content in certain situations. Some of these situations are set out in the Copyright Act; others are in
Regulations to the Copyright Act. However, there are no provisions that allow the importation or supply of
circumvention devices, or the supply of circumvention services, in relation to access-control TPMs.
Remedies and penalties relating to circumvention devices and services are mostly the same as for copyright
infringement.“

“Altering or removing electronic rights management information
Copyright owners sometimes place “electronic rights management information” (ERMI) within digital copies of
their material so they can identify, and in some cases track, their material.
In some situations, copyright owners can take action against people who remove or alter ERMI from the copyright
owner’s copyright material without permission if this would enable or conceal a copyright infringement. In some
cases, removing or altering ERMI is a criminal offence. Copyright owners may also in some cases take action
against people who distribute, import or communicate to the public copyright material from which ERMI has been
removed or altered. Distributing, importing or communicating to the public this kind of material may also be a
criminal offence.
Remedies and penalties for these actions and offences are mostly the same as for copyright infringement.”

Scott Kane

1

Student Services and Amenities Fee – a University Student’s View

posted by Edward Guymer on Monday, August 17th 2009

The proposed Student Services and Amenities Fee has been in the news, with the Liberal Party not liking it, the Nationals planning to divert all the money to sport and now The Greens wanting the collected funds to go through student bodies.

As I write this, the Senate is debating the legislation, without agreement.

I should mention that I am a board member of the student association at my university.

There are 4,000 students at my regional campus, so at $250 per student per year, there would be a million dollars available. Where it is spent is up to the university, under guidelines set by the minister of the day. The legislation does say that the guidelines can not direct all funds to student organisations and prohibits the funds being spent on political campaigns or donations, by either the university or the recipient body.

How do students pay the fee?  Simply, it goes on the HECS bill, like other university costs, or is paid upfront.

The money is intended to pay for the services previously funded through compulsory student unions: child care facilities, counselling services, sporting facilities, recreation areas, events and so on. Under the Howard Government, these services were cut back or taken over by the universities or by private enterprise.

Student services are still decidedly inferior to what they used to be and what they could be.

I have learned my university – and presumably most others – intends to fund services through current providers, improving some and reintroducing others that were lost.

If the Nationals’ amendment gets up, my little campus would continue to struggle with minimal funding for vital, heavily patronised services, while equipped with lavish sporting facilities.  A million dollars buys a lot of footballs.

The changes proposed by The Greens could result in more funds to student bodies than needed, leading to lopsided service provision or in student bodies having to re-establish services dropped by other providers.

On the other hand, if too low a proportion of funding goes to student bodies, it may mean underfunding the key services they provide.

Either way, both the Nationals’ and Greens’ proposals mean inferior services compared with the legislation as it stands.