Australian Copyright Reform Goes Into Reverse: 'Fair Use' Out, 'Three Strikes' In

from the what-a-waste dept

Wed, Feb 26th 2014 7:51am — Glyn Moody

Techdirt first wrote about Australia's plans to reform copyright back in August 2012. In April 2013, we passed on the news that the final report was likely to include a fair use provision. The final report was released just a couple of weeks ago, and did indeed recommend the introduction of a fair use exception to Australian copyright law. However, something happened during this long process: Australia held a general election, leading to a change in government. The new Attorney General, George Brandis, lost no time in making his views known, saying that:

he "remains to be persuaded" that Australia needs a fair use clause in its copyright law.

That's politician-speak for "I'm throwing the Australian Law Reform Commission's amazingly professional, diligent and balanced 478-page report based on evidence drawn from 109 consultations and 870 submissions into the rubbish bin, and replacing it with dogma-based policy based on my own blinkered views." Some of those were on display in a radio interview Brandis gave this week on the subject of Internet piracy. It starts off badly: The fact is that people don't have a right to download pirate copies of songs or movies or television programs because the people who make those programs or other items have a right of property in them. The way artists earn their living is through royalties and that's the way they are remunerated for what they do.
It's one of the ways, but certainly not the only one, as Techdirt's "The Sky Is Rising" report explained. The interview gets worse: To pirate a video or a song without paying the fee for it through iTunes, and so on, is an act of theft, it's pure and simple.
Brandis continues parroting the copyright industry by saying: The ISPs, in my view, do need to take some responsibility for this because they provide the facility which enables this to happen.
That's even though the Australian courts decided in the iiNet case it was simply not reasonable to require ISPs to pass judgment on those accused of unauthorized sharing. Unfortunately, given his powerful position in the new Australian government, what Brandis says matters, because he can turn his wrong-headed ideas into wrong-headed laws. The Guardian has a report of a speech he made a couple of weeks ago in which he made it pretty clear what he planned on the copyright front: "The government will be considering possible mechanisms to provide a legal incentive for an internet service provider to co-operate with copyright owners in preventing infringement on their systems and networks," Brandis told the copyright forum. "This may include looking carefully at the merits of a scheme whereby ISPs are required to issue graduated warnings to consumers who are using websites to facilitate piracy."

He said his preference would be for the industry to police itself, rather than have the government impose potentially burdensome regulations.
It's a familiar threat: come up with totally "voluntary" co-operation schemes or we'll impose them on you using our exquisitely painful "legal incentives". But what's really striking here is that not only is Brandis regurgitating bad ideas that haven't worked anywhere, he's doing this in preference to building on the great ideas that were presented to him by people who knew what they were talking about, and who cared deeply about Australia's digital future. When it comes to making copyright fit for the 21st century and promoting the online economy, it seems that the country's new government is determined to snatch defeat from the jaws of victory.

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Filed Under: australia, copyright reform, fair use, george brandis, three strikes

44 Comments

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Violynne (profile), 26 Feb 2014 @ 6:33am

It's a good thing Australia shed that "penal colony" moniker it carried for decades.

Wait a second! I see what politicians are doing there!
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bob, 26 Feb 2014 @ 8:11am

Depends upon what you mean by "fair use"
But morons around here pollute a perfectly good concept by using it to defend cheap, lard-butts who just sit around, "share" copies with their million dear friends, and then think they're equals to Martin Luther King, fighting the good fight against the Man, all while sucking down Doritos and Coke. What could be easier?

Just to repeat myself: stopping you from stealing something is not censorship. Shoplifting is not fair use.
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Anonymous Coward, 26 Feb 2014 @ 8:12am

"The ISPs, in my view, do need to take some responsibility for this because they provide the facility which enables this to happen."

If publishers didn't publish anything, there'd be nothing to pirate. Going by Brandis' reasoning, publishers are, above and beyond, the greatest facilitators of piracy, and should receive the harshest punishments for acts of piracy.
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Anonymous Coward, 26 Feb 2014 @ 8:12am

...Gee, I wonder who paid for his campaign again.
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Silver Fang (profile), 26 Feb 2014 @ 8:17am

Why did they vote this ass clown in?
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PaulT (profile), 26 Feb 2014 @ 8:19am

Re: Depends upon what you mean by "fair use"
After the amount of time you've been here lying and whining, you would have thought you'd at least have come up with a different strawman to attack. that particular collection of lies is looking particularly tired.

Don't you have any urge to address reality?
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beech, 26 Feb 2014 @ 8:24am

I guess the water company should be blamed for drownings then
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Anonymous Coward, 26 Feb 2014 @ 8:26am

Re:
By that reasoning government need to take some responsibility for crime, as they provide the infrastructure that allow the crooks to travel, and the money that they obtain through crime.
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Anonymous Coward, 26 Feb 2014 @ 8:31am

Re: Depends upon what you mean by "fair use"
"Just to repeat myself: stopping you from stealing something is not censorship. Shoplifting is not fair use."

Just to repeat ourselves creating a copy of something isn't stealing as nothing has been taken infact you have more of the item in question not less. It isn't shoplifting either as the item that you complain about being stolen actually remains on the shelf.

Suggest you read the Dowling v US Supreme Court ruling.
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JEDIDIAH, 26 Feb 2014 @ 8:38am

Re: Depends upon what you mean by "fair use"
This is Australia. If anything, these "cheap lard-butts" probably just want to see stuff in a timely manner. If piracy is occurring, it's likely because publishers have not given users any opportunity to pay for stuff.

Fixating on this self-inflicted problem is just intended to distract from other issues like the ongoing attempt to strip individuals of their rights.
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Anonymous Coward, 26 Feb 2014 @ 8:40am

So is his government liable for any crimes committed where the criminal get away using the roads then?

Are electrical companies liable for any crimes on the internet; these internet criminals use electricity to commit their crimes as well.

Are gun manufacturers then are liable for crimes committed with their guns.
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Anonymous Coward, 26 Feb 2014 @ 8:49am

Re: Depends upon what you mean by "fair use"
Except you have no idea how 'sharing' works. If you make a copy of something the original remains, this is not the case with 'Shoplifting' thus your example is wrong. If sharing information didn't work then libraries would have ceased to exist a long time ago.

Now does that mean that you should be downloading stuff without paying for it? No, you have no entitlement to anything without paying for it.
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John Fenderson (profile), 26 Feb 2014 @ 8:53am

Re: Depends upon what you mean by "fair use"
You don't actually understand anything that's said here, do you?
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Chris-Mouse (profile), 26 Feb 2014 @ 8:55am

Here`s a thought...
If third parties are going to be responsible for protecting copyright, they need some way to determine what is and is not protected under copyright.
So, here`s a solution.
Create a publicly accessible central database of works protected by copyright. All copyright holders must register their works in this database as a condition of getting third party protection. If a work is not registered, no third party has a responsibility for protecting it.
The next problem is knowing if a work is duly licensed for distribution. In order to solve this, the database must also contain the full text of all copyright transfers and licenses so that any third party can make a determination over whether any given distribution is permitted or not.

Somehow, I`d expect Hollywood to scream very loudly at even the suggestion that they might have to reveal how badly they are screwing artists.
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Anonymous Coward, 26 Feb 2014 @ 8:55am

Re: Depends upon what you mean by "fair use"
By the way fair use has nothing to do with sharing, and everything to do with things like free speech.
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techflaws (profile), 26 Feb 2014 @ 9:00am

Re: Depends upon what you mean by "fair use"
You fail even at filling in for OOTB. Pity.
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Anonymous Coward, 26 Feb 2014 @ 9:01am

Re: Here`s a thought...
Such a database must also contain a copy of all copyrighted works, and a means of comparing files with them, otherwise how is what is a copy to to be determined. Note, titles are not unique, and hashes are sensitive to 1 bit changes.
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tracker1 (profile), 26 Feb 2014 @ 9:23am

The government needs to take at least partial responsibility for drunk driving...
By that logic... regarding drunk driving...

The government, in my view, do need to take some responsibility for this because they provide the facility which enables this to happen.
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Anonymous Coward, 26 Feb 2014 @ 9:26am

Bung bung bung!
The bells proclaimed
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Anonymous Coward, 26 Feb 2014 @ 9:35am

The continual push for ever longer copyright lengths will eventually retro bind all past fair use at the rate it is going. What will happen to all those Disney sources once they are again under copyright?

Maybe they still have some aborigine tales that haven't been copied and made into film or something. Dreamtime and walk-a-bout has pretty much been done in already.
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Anonymous Coward, 26 Feb 2014 @ 9:38am

Re: Re: Depends upon what you mean by "fair use"
If this is your takeaway from Dowling, you should read several times the entirety and context of the paragraph from which the snippet regularly cited here was taken.
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Anonymous Coward, 26 Feb 2014 @ 9:42am

Re: Re: Depends upon what you mean by "fair use"
Library books are acquired by libraries under terms where the sellers and the libraries agree to certain limitations that are not generally associated with sales to individuals within the general consumer market. The constant raising of libraries as an example of the point trying to be made here derives from unfamiliarity with such agreements.
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That One Guy (profile), 26 Feb 2014 @ 10:26am

Re:
Please, huge companies like Disney don't need to worry about the law, especially when it's their bought and paid for law, should such an event occur, they'll continue to loot what used to be the public domain with impunity, as all those that could hold them accountable just look the other way, hands out for 'their' cut.
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squall_seawave (profile), 26 Feb 2014 @ 10:40am

Re: Depends upon what you mean by "fair use"
you should repeat to yourself : piracy is bad but is not thievery, fair use is for increase of culture and copyright is for the increase of profit

what we need is a real definition of fair use that cannot be discused and a punishment and a punishment for a false claim
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Anonymous Coward, 26 Feb 2014 @ 10:50am

Federal reserve must be running overtime, or maybe a tad of, i scratch your back..........
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DogBreath, 26 Feb 2014 @ 11:30am

Re: Re:
Not only that, but the Australian Government collects taxes from the income these ISPs are getting from their customers, thereby meaning the Australian Government is profiteering from Piracy!

Disconnect "them" from the Internet!!!
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Anonymous Coward, 26 Feb 2014 @ 11:33am

An eye for an eye
Don't want people "stealing" "your" works? Don't steal our politicians.
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art guerrilla (profile), 26 Feb 2014 @ 11:35am

Re: Re: Depends upon what you mean by "fair use"
say, "bob", where'd you go ? ? ?
oh, can't defend your indefensible MAFIAA talking points ? ? ?
is there a point to your incessant shouting of 'is too !!!', while plugging your ears and going 'neener-neener, can't hear you...', all without defending the concept in any rational form ? ? ?
no?
didn't think so...
gosh, i sure am looking forward to the day when i grow up and the adults are in charge of the world; 'cause -so far- its looking like it is 'tards all the way down ! ! !
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art guerrilla (profile), 26 Feb 2014 @ 11:39am

Re:
1. if their voting system is as vulnerable, proprietary, and incapable of auditing as ours is, then maybe he wasn't 'elected' by -you know- actually counting actual votes...

2. if their political system is as exclusionary and reactionary as ours is, then the good people down under probably had a choice of A. marginally sane korporate shill, and B. batshit insane extremist korporate shill...

3. looking more and more like it will take many necktie parties to undo this aconstitutional horror we lovingly call Empire...
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That One Guy (profile), 26 Feb 2014 @ 11:58am

Re: An eye for an eye
Hey now, they didn't steal those politicians, they bought them fair and square!
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Anonymous Coward, 26 Feb 2014 @ 12:50pm

Re: who paid
Murdock Owns 70% of the media outlets in Oz, all he did was say nothing about the liberal and only nasty things about the prior mob in government.
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Anonymous Coward, 26 Feb 2014 @ 1:25pm

'what's really striking here is that not only is Brandis regurgitating bad ideas that haven't worked anywhere, he's doing this in preference to building on the great ideas that were presented to him by people who knew what they were talking about, and who cared deeply about Australia's digital future.'

but they didn't bribe this prick to do what is right when the entertainment industries did. it was/ has always been a no win situation for sense and a win situation for the industries who are just so selfish and greedy, have so much money and the ability to make a single politician or head of justice dept throw out every shred of real proof in order to enact the wishes of a single industry! if anyone can think of a better reason than being bribed rotten, please say so!
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Anonymous Coward, 26 Feb 2014 @ 2:19pm

someone like to explain to me how just because of his personal position and preferences, all information gathered from however many studies can be discounted, completely ignored, in favour for his own ideas? he works for the people and therefore should be governed by what the people want just as much if not more than he or his preferred industry wants!!
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That One Guy (profile), 26 Feb 2014 @ 2:25pm

Simple:
All those studies, all that data, they don't make significant 'campaign contributions', or offer various 'perks' and 'potential future job opportunities'.
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Kronomex, 26 Feb 2014 @ 3:44pm

It has been well known, by anyone with more than two brain cells in this country, that the Liberal National Party (LNP) has been the bicycle stands for big business and corporations for years. The bigger the brown envelopes the wider they spread their cheeks for the wheels of the bikes. And don't forget kiddies our government has gone very quiet on the "great, terrific, wonderful, boon to the nation" TPP. I'm guessing the signing of it will be announced out of the blue sometime in the future. I feel sick now.
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rycho (profile), 26 Feb 2014 @ 5:58pm

This nonsense from Brandis triggered a national FacePalm Day marked by mournful bugling and half-mast flag ceremonies... er... or, at least, it should have.
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Anonymous Coward, 26 Feb 2014 @ 6:51pm

Re:
It goes like this:
1. Media outlets wanted the LNP in, so bad mouthed the ALP in the name of "news"
2. The ALP were in power and were an absolute cluster fuck (we're talking about the party wanting Mandatory Internet Filtering based on an undisclosed blacklist, and had secret meetings with US Big Content representitives about setting up three strikes)
3. The minor parties (those other than LNP and ALP) don't stand a chance... it's a two party system.

So in short we like to bag out the LNP, but realy we probably are not that much worse off in this area thanks to them. That said, in a whole bunch of otherways we are worse off, the LNP effectively scrapped the NBN, have started setting up laws that can be used to set up a police state (including guilt by association), and are being even less humane to boat people.

Relistically I can't see things improving untill some-one goes all Guy Fawkes on parliment, as they mostly seem interested in increasing their own power and making friends with the US government (that is effectively owned by Big Content... the MPAA and RIAA).
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Aussie Geoff (profile), 27 Feb 2014 @ 4:57am

Re:
The explanation is easy. He is a Liberal (that's the name of the Republicant er Conservative party in Australia) Party member and as such has no interest in facts and well reasoned arguments - ideology is everything. As for working for the people, he does - exactly the same "people" the US Republicant party works for!

He was not elected as Attorney General, he was elected to parliament (actually re-elected) and appointed as Attorney General by the Prime Minister - another big-mouthed, arrogant, arsehole Liberal Party politician.

As for ignoring the advice, that happens all the time. Ministers are required (under certain legislation) to seek advice/recommendations from numerous governmental or private bodies, but are totally free to ignore the advice/recommendations they receive.

In regard to his own ideas, this is not unusual, the Attorney General is a political appointment. The Attorney General is supposedly the "Chief Legal Officer" of the country and as such represents the government in court cases. Thank God we also have a Solicitor General (who is not a politician) to give the government legal advice.
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CheMonro (profile), 27 Feb 2014 @ 2:29pm

It's not cricket!
I'm just surprised that as Australia is not a baseball playing country they would propose a "three strikes" law. Why not an "It's not cricket!" resolution or a "upped stumps and retired to the pavillion" regulation?
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Anonymous Coward, 27 Feb 2014 @ 4:20pm

Re: Depends upon what you mean by "fair use"
And your excuse for these theiving companies charging Australians twice as much as the US for the exact same material.

The Australian government used this report to get a $30 million dollar a year saving on their own software bill, but let these companies keep on screwing over the Australian public at will
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btrussell (profile), 28 Feb 2014 @ 4:59pm

"He said his preference would be for the industry to police itself, rather than have the government impose potentially burdensome regulations."

Then why is he asking the ISPs' to do the work for hollywood?
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Anonymous Coward, 3 Mar 2014 @ 9:13am

"[it] is an act of theft, it's pure and simple."

Chris Dodd?
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Anonymous Coward, 8 Mar 2014 @ 1:02pm

Re: Re: Re: Depends upon what you mean by "fair use"
Citation needed. I don't need permission to set up a library where I lend my own property (purchased books or music) to other people.
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Anonymous Coward, 25 Apr 2014 @ 12:41am

Re: Re: Here`s a thought...
They could use perceptual hashes, as Google use for YouTube.
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