Framing the Convergence Review

On 28 April, the Government’s Convergence Review (noted here) issued a Framing Paper.

According to p. 4 of this curious document:

This initial consultation paper seeks to identify the principles that should guide media and communications regulation in Australia, and provide stakeholders with the opportunity to raise the key issues arising from the principles. Its intent is to invite big-picture thinking about the Australian media and communications environment in its global context and how it may need to be shaped in order to achieve principles that serve the public interest. The committee will use these principles as a starting point to advise government of its preferred alternative policy framework

Accordingly (from p. 11):

the committee considers it appropriate to develop and consult with stakeholders on a set of principles to guide the committee’s consideration of specific issues. These principles have two main aims: to provide a consistent and transparent basis on which to consider specific issues and to ultimately form the basis of a set of policy objectives suitable for a converging media environment.

So your comments on the Framing Paper are sought by 10 June 2011. Then, the timetable is:

  • Emerging Issue paper : June 2011
  • Hearings: July 2011
  • detailed Discussion Papers: August 2011
  • Final Report: March 2012.

For the most part, the Framing Paper appears to relate to the regulatory regimes for broadcasting and telecommunications.

When announcing his intention to refer aspects of copyright law to the ALRC, the Attorney-General appeared to indicate that the reference (if any) will be subject to what happens in this Convergence Review. It is not so easy to identify from the Framework Paper, however, what areas might be cut across by the ALRC reviewing copyright law.

The Framework Paper does refer in several papers to “legitimate content services”. May be, it is to be found in “principle 6” which is (proposed to be):

Principle 6: Australians should have access to the broadest range of content across platforms and services as possible

This principle is taken from paragraph 5(e)(ii) of the Terms of Reference and is consistent with the objects in the BSA12, and s.3(1)(a) of the Telecommunications Act to ‘Promote the long-term interests of end-users of carriage services or of services provided by means of carriage services.’ The committee considers that a guiding principle for the review is to maximise the range of legitimate content services available to Australians. A consideration is that regulation should be flexible and adaptable to changing market and technological circumstances, and constructed with a view to enhancing audiences and consumer choice.

Principle 7 appears to be directed more to the question of ‘net neutrality.

Convergence Review Framing Paper (pdf)

The Convergence Review’s home page

Convergence Review: Let the bun fight(s) begin

Over at Lawfont, Sarah reports that the terms of the Convergence Review have been announced.

This is not just about ‘regulatory’ matters. From the preamble:

…. At the same time, the globalising effect of the internet is profound and rapid, and has challenged regulatory boundaries.

New content services channelled through internet service providers and across jurisdictional borders are challenging traditional media business models and forcing governments all over the world to reconsider the assumptions behind existing legislation and regulatory frameworks.

….

The government wants to make sure that the policy framework upon which Australia’s industry structures and regulation are built is adequately designed for the convergent age and does not impede continued technological change and innovation. At the same time, the framework must ensure the ongoing protection of Australian content and cultural values, the adequate reflection of community standards and expectations and the safeguarding of privacy and other citizens’ rights.

The government recognises that any discussion of the production and distribution of Australian content raises issues of copyright in the digital age. The Review Committee may offer views on copyright and the ongoing protection of content in a converged environment, noting that the Attorney-General will ultimately determine these matters.

(my emphasis)

and point 2 of the terms of reference:

the Committee shall have regard to all legislation and regulatory frameworks relevant to these terms of reference and, where necessary, advise the government on issues outside the purview of the Minister’s portfolio responsibilities.

(my emphasis again)

[remembering, as the preamble noted, that copyright is within the Attorney General’s portfolio, not the Minister for Communications etc.]

The review is specifically directed to  take into account amongst other things by point 5(b), (c) and (d):

  • b) ensuring the ongoing production and distribution of local and Australian content that reflects and contributes to the development of national and cultural identity;
  • c) the impact of policy settings on industry and government revenue;
  • d) appropriate ways to treat content, and the services and applications used to deliver content, which are cross-border in nature;

We also heard (or read) last week that the ALRC will be told to keep its hands off the issues covered by the Convergence Review.

The Review is to deliver their final report to Government by the first quarter of 2012.

The terms of reference.

The Minister’s speech (not to Parliament) announcing the release of the terms of reference.

A Mr Boreham, from IBM, will chair the review; a Mr Long, with a background from the regulatory agencies, will be the second member and a third member is to be announced.

An earlier time, when “convergence” seemed new (and iTunes and P2P) were not even twinkles in our computer monitors (pdf).

Copyright reform agenda

The Commonwealth Attorney General’s opening address to the Blue Skies conference is here.

Some excerpts:

International reforms:

While recognising that the challenges of the digital era are a global, not just national, issue, the Attorney General identified access to cultural works by the visually impaired as an area for early action:

An example of one area in which I am particularly keen to see a result this year in the international arena is overcoming copyright barriers for visually impaired people in accessing copyright works in suitable formats. I understand that internationally, only five per cent of all works are available in accessible formats for the visually impaired.  This is an unacceptable statistic and an acute problem for developing countries.

If there were hisses and boos from the audience, let’s hope it was for the right reasons!

On the domestic front:

  • a straight bat played to yesterday’s iiNet decision
  • a consultation paper will be released soon on who should be the beneficiaries of the ‘safe harbour‘ regimes, currently limited to the indecipherable “carriage service providers

For example, the definition excludes entities that do not provide network access but provide online services – Google and Yahoo are obvious examples of this category.

(That is the Attorney General’s example, not mine.)

  • possible introduction of a new “ad hoc” exemption to the technological protection measures (see e.g. s 116AN(9))

The Copyright Advisory Group has approached me for an additional exception to allow circumvention of technological protection measures for certain education purposes.

In particular they have sought an exception that would allow schools to change the format of films from DVD to MP4 for teaching purposes.

It would seem that what is to be referred still involves considerable clarification. One area flagged:

I believe there would be merit in examining some exceptions under our law in the context of the online environment and whether the correct balance exists.

Another which the ALRC will not be allowed to cut across:

It will be important to not duplicate work undertaken by Government on various policy issues, or in the course of related reviews -for example the Government’s Convergence Review.

So, it seems the Convergence Review will not just be “regulatory”.

Lid dip: Jane Treleaven