Copyright

Optus TV Now and the threat to sports’ millions

The media yesterday was splashed with stories about how Optus is threatening the flow of revenues to sports such as the NRL and the AFL through its TV Now service (for example, here and here and here). Hundreds of millions of dollars are apparently at stake.

Basically, it looks like you download an “app” to your phone or computer and you can then record (or perhaps more strictly, instruct Optus to record) a television program being broadcast on free to air television on Optus’ servers and then have the recording streamed to your mobile or computer at a time and place of your choosing – Optus’ promotional video suggests as your sitting on the bus. The media reports suggest you might be able to start watching as soon as 2 minutes after the game program starts broadcasting. There are a few constraints: You have to watch within 30 days of the recording. You can only nominate programs broadcast in the area where your account address is located. It looks like, if you’re an Optus (mobile) subscriber you get 45 minutes storage “free”, but you can “buy” more if you want.

Optus’ version of how it works here and here.

It is billed as just like home taping or recording only for the 21st century.

Optus is reported to be seeking an injunction against the AFL and the NRL to stop them suing it for copyright infringement. In fact, Optus has brought proceedings against both the NRL and the AFL and the first directions hearing was heard by Rares J today: NSD1430/2011. Rares J made timetabling orders for defences (and cross-claims) and evidence with the trial fixed for 19 December 2011.

The injunction part is easy: someone who is on the receiving end of threats of copyright infringement can bring an action for groundless threats of infringement and, if successful, the remedies include an injunction against continuation of the threats and possibly damages for loss suffered.

Presumably, the AFL and/or the NRL sent Optus letters of demand telling it to stop or else. If so, there will be a threat and then it will be over to the AFL and/or the NRL to establish that what Optus is doing infringes their copyright.

In the case of a (largely unscripted) sporting spectacle like a footy final, the copyright is going to subsist only in the broadcast (hmmm, what about the jumpers and logos and ….)

I am guessing (but I don’t know) that the AFL’s and the NRL’s contracts with the broadcasters involve the broadcasters assigning their copyright in the broadcast to, respectively, the AFL and the NRL.

As I haven’t seen Optus’ claim or, more likely, defence to cross-claim, I am also guessing Optus will be relying on s 111 of the Copyright Act:

(1) This section applies if a person makes a cinematograph film or sound recording of a broadcast solely for private and domestic use by watching or listening to the material broadcast at a time more convenient than the time when the broadcast is made. Note: Subsection 10(1) defines broadcast as a communication to the public delivered by a broadcasting service within the meaning of the Broadcasting Services Act 1992 . Making the film or recording does not infringe copyright

(2) The making of the film or recording does not infringe copyright in the broadcast or in any work or other subject-matter included in the broadcast.

Note: Even though the making of the film or recording does not infringe that copyright, that copyright may be infringed if a copy of the film or recording is made.

Dealing with embodiment of film or recording

(3) Subsection (2) is taken never to have applied if an article or thing embodying the film or recording is:

(a) sold; or

(b) let for hire; or

(c) by way of trade offered or exposed for sale or hire; or

(d) distributed for the purpose of trade or otherwise; or

(e) used for causing the film or recording to be seen or heard in public; or

(f) used for broadcasting the film or recording.

Note: If the article or thing embodying the film or recording is dealt with as described in subsection (3), then copyright may be infringed not only by the making of the article or thing but also by the dealing with the article or thing.

(4) To avoid doubt, paragraph (3)(d) does not apply to a loan of the article or thing by the lender to a member of the lender’s family or household for the member’s private and domestic use.

The first thing here will be who makes the recording. Will the Optus subscriber’s use of the technology to get a recording made on Optus’ servers (in the cloud) mean that the subscriber is the person who makes the recording or will it be Optus?

If Optus is the person who makes the recording (a) can the subscriber delegate the making to them as an agent or (b) does the recording need to be made for Optus’ private and domestic use or will the private and domestic use of its subscriber suffice?

As to who makes the recording, the US Circuit Court of Appeals for the Second Circuit in the rather different legislative setting of the US Copyright Act considered that the party in the position of Optus did not make the recording: Cartoon Network v Cablevision Inc. 536 F. 3d 121.

On the other hand, while recognising the possibility of a person making a fair dealing copy through an agent, in Australia Beaumont J found that a news monitoring service infringed copyright by making clippings of newspaper articles for its clients. While the clients may have had a relevant fair dealing purpose, the news monitoring service’s purpose was not a fair dealing purpose but a commercial purpose of making copies for its clients: De Garis v Nevill Jeffris Pidler Pty Limited [1990] FCA 218.

(You will have noticed that s 111(2) applies to not just to the copyright in the broadcast, but also any other copyright included in the broadcast. So that takes care of the logo, jumpers and all the other copyrights in scripted shows like, er, Home and Away etc.)

Section 111(2) only immunises the making of the recording. What happens when Optus streams the recording back to the subscriber? If it is set up so that the recording is streamed only to the individual subscriber, it will be difficult to call it a broadcast. But is it otherwise a communication to the public? This might turn on whether the communication is made by the subscriber (or his or her agent) to themselves or Optus. In the Music on Hold case (largely superseded now as a result of significant changes in the legislation), Dawson and Gaudron JJ emphasised that the public were people whom the copyright owner might fairly regard as its public and downplayed the number of persons involved. Will the commercial nature of Optus relationship with its subscribers colour the characterisation of this situation?

I guess we will have to wait and see.

Singtel Optus v National Rugby League and the Australian Football League NSD1430/2011.

Optus TV Now and the threat to sports’ millions Read More »

How wide should an injunction be?

Having granted summary judgment against Paul’s Retail for infringement of a range of fashion brands trade marks and copyright, Kenny J has now made orders for the remedies flowing from the infringements. One point of general interest was the dispute about the scope of the injunctions.

Her Honour accepted that injunctions were a conventional remedy for intellectual property infringement and were appropriate for grant in this case, largely because it appears the respondents did not offer undertakings and continued to engage in infringing conduct after they had claimed to have ceased it.

The applicants sought broad injunctions in terms typically granted in patent cases (where the order is often as broad as “thou shalt not infringe the patent” – expressed in modern plain English of course). The respondents argued such wide injunctions would travel well beyond the pleaded and proved infringements. Kenny J referred to cases identifying the Court’s concerns against overly broad injunctions, especially as they carried with them the risk of contempt.

Kenny J accepted, on the basis of those cases, that an injunction could in appropriate cases be framed in terms of the statutory command and need not necessarily be tied to prescribe specific conduct. Nonetheless, her Honour considered:

23 As noted above, in Universal Music Branson J stated that it may be permissible to incorporate in an injunction the terms of a statutory prohibition. It does not follow from this, however, that it is permissible to include in injunctions prohibitions against forms of infringing conduct that have not been proven, let alone alleged: compare Microsoft Corp v Goodview Electronics at 592. Bearing these considerations in mind, I propose to grant injunctions in terms incorporating the statutory language but substantially designed to guard against the infringing conduct that has been proven.

Thus, the specific terms of the injunctions granted differed according to the nature of the infringing conduct.

For example, instead of granting an injunction to restrain the respondents from infringing copyright [or the applicant’s copyright in a particular work], Kenny J granted an injunction:

Pursuant to section 115(2) of the Copyright Act 1968 (Cth), the first respondent be permanently restrained from:

(a) reproducing or authorising the reproduction of the whole or a substantial part of any of the Ug Manufacturing Copyright Works without the licence or authority of the fifth applicant;

(b) publishing and communicating to the public or authorising the publication and communication to the public of the whole or a substantial part of any of the Ug Manufacturing Copyright Works without the licence or authority of the fifth applicant;

(c) selling, offering for sale, supplying, offering to supply, importing or distributing any articles bearing any Infringing Ug Manufacturing Copyright Works (such Works being a copy of the whole or a substantial part of any of the Ug Manufacturing Copyright Works which has not been made or applied by or with the licence or authority of the fifth applicant);

(d) authorising, directing or procuring any other company or person to engage in any of the conduct sought to be restrained by sub-paragraphs (a), (b) and (c).

Apparently, the injunctions against the proven trade mark infringements were also tailored more narrowly.

QS Holdings Sarl v Paul’s Retail Pty Ltd (No 2) [2011] FCA 1038

 

How wide should an injunction be? Read More »

Telstra v PDC update

The transcript of Telstra’s unsuccessful application for special leave has now been posted here.

The Sydney Morning Herald speculates that Telstra is seeking talks with the Attorney General “to close the loophole”.

One consequence of the High Court’s revolution in copyright law is that the privacy regime which prevents the use of the Integrated Public Number Database (and IPND Industry Code) to create reverse-number directories has been undermined.

As its name suggests, a reverse-number directory is one where you have the telephone number and you can use it to identify who the subscriber is. Now, you may question whether that is an invasion of privacy (and many people happily (or maybe unknowingly) permit their telephone number to be transmitted to the person they are calling, but Parliament, the ALRC and the Privacy Commissioner (pdf see p. 402) have taken the view that it is, or should be.

Now, it could well be argued that copyright (I mean) a sui-generis database protection right would be a blunt instrument for protection of privacy and that privacy concerns would be better addressed, if necessary, by amending privacy laws. The economic case for database protection, therefore, would be key.

The Full Federal Court’s decision from which leave was not granted.

Lid dip: Copyright Council.

Telstra v PDC update Read More »

Telstra v PDC special leave

The High Court (Gummow and Bell JJ) refused Telstra’s special leave application this morning.

Young QC for Telstra ran hard on the concurrent findings that there was human skill and effort in the collection and verification of the data. However, that ran up against Yates J‘s findings at [167] – [169] and Keane CJ’s findings at [89] – [90].

At [113], Perram J had said:

Had the tasks been attended to manually an original work would have ensued.

Which might seem a very strange, technology specific approach to take in this day and age.

Bell J, however, challenged Young QC about the difference between “computer-assisted” and “computer-generated”. Gummow J at one point stated, you need a database directive.

One might wonder whether allowing special leave in this case would have thrown any light on the differences in approach between the two judgments in IceTV. In November, the Full Federal Court is scheduled to hear an appeal in Dynamic Supplies. Who knows whether it will get there or not. If it did, however, it might present an interesting vehicle for exploring the new world which IceTV ushered in.

Telstra v PDC special leave Read More »

How much to pay for an infringement

Over at the Fortnightly Review, Ass. Pro. David Brennan takes issue with the economists who argued that Larrikin should not have been paid any damages for the Kookaburra infringements.

The economists’ argument seems to have been that Larrikin didn’t lose any sales as a result of Men at Works’ infringements and so suffered no loss.

Damages under s 115(2) of the Copyright Act are compensatory: that is, they are calculated to compensate the copyright owner for the loss suffered as a result of the infringement. One way to measure that may be the profit the copyright owner lost on sales which typically applies where the copyright owner and the infringer are competing in the same market. One problem with this is that the figure for lost sales must be discounted to reflect infringements by the infringer which would never have been sales made by the copyright owner. So for example in Autodesk v Cheung, the infringer gave the pirate copies away for free while the copyright owner’s genuine software programs sold for hundreds of dollars.

Another measure often used is the licence fee approach, particularly applicable where the owner exploits the copyright by licensing. So, Autodesk wanted the licence fees it would have been paid as if Cheung had taken out a distribution agreement like its other distributors. Wilcox J was not prepared to order damages at a reasonable royalty level because, as is typically the case, there was no way Autodesk would have licensed Cheung or, for that matter, that Cheung would have paid for a licence from Autodesk. In that situation, Wilcox J felt that the basis for a reasonable royalty — the price a hypothetical willing (but not overly anxious) licensor and a hypothetical willing (but not overly anxious) licensee would have struck — could not apply.

While some courts at first instance have been willing to use a ‘reasonable royalty’ as a basis, Wilcox J’s concerns have been endorsed by Black CJ and Jacobson J in Aristocrat.

It is interesting to contrast this approach with the way the courts in the UK have dealt with it. Relying on some “old” patent cases (including a House of Lords decision), the Court of Appeal in Blayney (trading as Aardvark Jewellery) v Clogau St David’s Gold Mines was willing to use a “notional royalty” as the measure of the damages. The foundation of this approach was a rejection of the idea that the only loss suffered by the copyright owner was lost profits. Thus, in Watson, Laidlaw & Co Ltd v Pott, Cassels and Williamson (1914) 31 RPC 104, Lord Shaw expressed the principle:

wherever an abstraction or invasion of property has occurred, then, unless such abstraction or invasion were to be sanctioned by law, the law ought to yield a recompense under the category or principle, as I say, of price or hire. If A, being a liveryman, keeps his horse standing idle in the stable, and B, against his wish or without his knowledge, rides or drives it out, it is no answer to A for B to say: “Against what loss do you want to be restored? I restore the horse. There is no loss. The horse is none the worse; it is the better for the exercise.

and applied it in the context of patent infringement:

If with regard to the general trade which was done, or would have been done by the Respondents within their ordinary range of trade, damages be assessed, these ought, of course, to enter the account and to stand. But in addition there remains that class of business which the Respondents would not have done; and in such cases it appears to me that the correct and full measure is only reached by adding that a patentee is also entitled, on the principle of price or hire, to a royalty for the unauthorised sale or use of every one of the infringing machines in a market which the infringer, if left to himself, might not have reached. Otherwise, that property which consists in the monopoly of the patented articles granted to the patentee has been invaded, and indeed abstracted, and the law, when appealed to, would be standing by and allowing the invader or abstractor to go free. In such cases a royalty is an excellent key to unlock the difficulty, and I am in entire accord with the principle laid down by Lord Moulton in Meters Ld. v Metropolitan Gas Meters Ld. (28 R.P.C. 163). Each of the infringements was an actionable wrong, and although it may have been committed in a range of business or of territory which the patentee might not have reached, he is entitled to hire or royalty in respect of each unauthorised use of his property. Otherwise, the remedy might fall unjustly short of the wrong.

The Meters case was referred to by Wilcox J, but it does not seem that Watson, Laidlaw was cited to his Honour.

Now, of course, the 19th century considerations of a horse owner and “borrower” seem “quaint” in the age of Gogle and P2P torrents. But is the principle really so different?

It appears that the third member of the Court in Aristocrat, Rares J, may well have been willing to adopt the Watson, Laidlaw approach, but the evidence failed to provide a basis for any “judicial” estimate.

How much to pay for an infringement Read More »

iTunes Match and making Prof. Lessig’s case

Recap: Prof. Lessig’s argument.

You will remember that Michael Speck from Music Industry Piracy Investigations was outraged by Apple’s pending iTunes Match service and, in particular, the part where the service would in your iCloud account copies of music on your hard drive which had not been bought through iTunes.

At the time, it wasn’t clear (at least to me) whether Apple was going all gung-ho and just offering this unilaterally or had the agreement of the record companies to this.

Of course, if the record companies had agreed to this, it would be rather hard for them, or their representative, to complain about the pirate’s charter.

Jonathon Bailey, at Plagiarism Today, reports here that Apple is in fact offering the service in the USA with the agreement of the record companies. He also goes on to discuss indications that this is all part of a clever new strategy by the record companies to combat piracy – one of the indications he identifies includes recent reports that the music industry in Australia is not pursuing a 3 strikes policy (at least as strongly) as the movie industry.

Swerving to another aspect: the iTunes Match service Steve Jobs announced was for the USA only. Media reports suggest it will take up to 12 months for the service to be extended to the UK and speculate other countries will have similar delays.

Copyright is, of course, a territorial right and there are often different owners and licensees for different territories (i.e., countries). Thus, just because you have consent from the (or a) copyright owner in one country does not give you rights to do the same thing with the corresponding copyright in another country. No doubt, therefore, a large part of any delay will be attributable to the need to negotiate separate arrangements with the owners of copyright in different territories.

So the delay reported in the media should come as no surprise. That shouldn’t come as too much of a surprise to those in Australia who monitored, for example, how long it took for the iBookstore to get any “in copyright” content. Perhaps, if Mr Speck’s view is representative of the views of the copyright owners in Australia, the wait would be even longer – what an economist might describe as “infinitely long”.

All of which goes to highlight, as representatives around the world assemble in Geneva to debate extending copyright and introducing limitations for visually impaired readers, why are we still dealing in the 21st century with territorial rights for electronic rights which can be accessed virtually instantaneously from virtually anywhere in the world?

Oh, perhaps it’s not just an electronic “problem”. This product is advertised for sale in the USA for US$399. You can buy it here for AUD$699 or (depending on exchange rate fluctuations) approximately US$736. (By the way, I am certainly not recommending that you do buy the product from either source, I have no experience with it.) Almost makes you wonder where’s Prof. Fels?

iTunes Match and making Prof. Lessig’s case Read More »

Helping make Prof. Lessig’s case for him

So, Steve Jobs introduced iCloud to the world yesterday.

Michael Speck from Music Industry Piracy Investigations (the people who bring down pirates like Kazaa for the record industry) declared:

Apple was “no better than the old p2p pirates”.

Now, at one level, Apple is not doing that much that hasn’t already been done before: Apple own webpage compares its service to those already on offer from Amazon and Google. Here’s another 17 Apps Mr Jobs made redundant.

Presumably, what you “buy” from Apple through the iTunes store is covered by a licence. The thing that Mr Speck is concerned about is the iTunes Match service: if you let Apple scan your hard drive it will store on the iCloud server for you copies of – according to Mr Speck – all the music you have there; you paid music and music you, er, ripped yourself including pirated music files.  Tidbits’ summary of iTunes Match:

iTunes Match — What about the music you purchased elsewhere or ripped from CD yourself? For a $24.99 yearly fee, iTunes Match makes those songs available, too. iTunes uploads a list of songs in your library (much as it does now for the iTunes Genius results) and matches them (probably using music fingerprinting) against Apple’s collection of 18 million tracks. If you choose to download a track to a device where it doesn’t appear, Apple provides a version at iTunes Plus quality (256 Kbps and free of DRM), even if your original copy was ripped at a lower quality.

Hmm, so if an Australian user chooses the music files to be “matched”, that puts Apple in the territory of iiNet (unless of course Apple’s servers are “in” Australia too).

But wait you say, isn’t there a fair dealing defence? See if you can fit what is being proposed into this.

From what some of the other commentators say, however, it looks like Apple may have cut a deal with the record companies so that some percentage of the annual iTunes Match fee goes to the record companies – see the comments of Kim Weatherall and Colin Jacobs here.

If that were part of the deal with the record companies, then problem solved, but Mr Speck’s interpretation is that it just a unilateral position taken by Apple without the consent of the copyright owners.

Then, for those of us in Australia, there is another problem: when it launches, iTunes Match will be available only in the USA. It will become available in other parts of the world only when licences are negotiated with the copyright owners. Wonder how long it will take before (a) Apple gets around to negotiating with copyright owners for Australia and (b) the chances the copyright owners for Australia will agree to any of this? Remember how long it took for any copyright material to show up in the iBookstore?

On the topic of territorial copyright:

When Zengobi announced Curio Core it was priced (to US customers) at US$39.99. It’s currently available in the Apple Australia Mac App store for AU$47.99, even though the Australian $ currently buys (approx) US$1.06 (which translates into just under AU$38. You can have similar fun with lots of other items in the App stores. Choice magazine provides even more egregious examples for a host of brands.

What Prof Lessig’s case is.

Helping make Prof. Lessig’s case for him Read More »

Lessig at e-G8 or Le civilised Internet vs gales of creative destruction

While we’re having our dark mutterings about what might be in a “Convergence Review“, the Leaders of the Free World (or at least the Western Hemisphere) meeting at Deauville have declared:

5. We discussed new issues such as the Internet which are essential to our societies, economies and growth. For citizens, the Internet is a unique information and education tool, and thus helps to promote freedom, democracy and human rights. The Internet facilitates new forms of business and promotes efficiency, competitiveness, and economic growth. Governments, the private sector, users, and other stakeholders all have a role to play in creating an environment in which the Internet can flourish in a balanced manner. In Deauville in 2011, for the first time at Leaders’ level, we agreed, in the presence of some leaders of the Internet economy, on a number of key principles, including freedom, respect for privacy and intellectual property, multi-stakeholder governance, cyber-security, and protection from crime, that underpin a strong and flourishing Internet. The “e-G8” event held in Paris on 24 and 25 May was a useful contribution to these debates.

[Slight digression: “new” issues? plus ça change?]

The real fun, however, was at the “e-G8”.

President Sarkozy, who was convening the meeting of the Leaders, had brought together all sorts of likely people

[such as Eric Schmidt, Mark Zuckerberg, Jeff Jarvis and Prof. Lessig]

and issued a clarion call for Le Civilised Internet.

It all started very well with M. le president declaiming:

You have changed the world. For me, you have changed the world, just as Columbus and Galileo did. You have changed the world, just as Newton and Edison did. You have changed the world with the imagination of inventors and the boldness of entrepreneurs.

However:

Also the States we represent need to make it known that the world you represent is not a parallel universe, free of legal and moral rules and more generally all the basis principles that govern society in democratic countries. Now that the Internet is an integral part of most people’s lives, it would be contradictory to exclude governments from this huge forum. Nobody could nor should forget that these governments are the only legitimate representatives of the will of the people in our democracies. To forget this is to run the risk of democratic chaos and hence anarchy. To forget this would be to confuse populism with democracy of opinion. Juxtaposed individual wishes have never constituted the will of the people. A social contract cannot be drawn up by simply lumping together individual aspirations.

and

Do not allow the revolution you began to violate people’s fundamental right to privacy and to be fully autonomous. Complete transparency, which never allows a person to rest, will sooner or later come up against the very principle of individual freedom.

Let us not forget that behind an anonymous Internet user, there is a real citizen who is evolving in a society, a culture and an organized nation to which he belongs and with laws he must abide by.

Do not forget that the sincerity of your promise will be assessed in the commitment of your companies to contribute fairly to national ecosystems.

Do not allow the revolution you began to violate the basic right of children to lives that are protected from the moral turpitude of certain adults.

Do not allow the revolution you began to be a vehicle for maliciousness, unobstructed and unrestricted. Do not allow this revolution become an instrument in the hands of those who wish to jeopardize our security and in doing so, our freedom and our integrity.

You have allowed everyone, with the mere magic of the Web, to access all the cultural treasures of the world in a simple click. It would be something of a paradox if the Web contributed to draining them over time.

The immense cultural wealth that provides our civilizations with such beauty is a product of the creative forces of our artists, authors and thinkers. Basically, it is the product of all those who work on enchanting the world.

Yet these creative forces are fragile because when creative minds are deprived of the fruit of their talents, they are not just ruined, what’s worse, they lose their independence, they will be required to pawn their freedom.

Unfortunately, this didn’t meet with such a good press (at least in those parts of the (western) world that Napoleon didn’t conquer). For some of the adverse press: herehereherehere. Maybe, the President said something more specific in unscripted comments as the press and Prof. Lessig all react to suggestions that the rest of the world should be introducing the 3-strikes regime of the loi hadopi (France and France again and NZ) and, in another reverberation DownUnder, the rights of governments to censor what their citizens read or do on the internet.

Prof. Lessig was willing to concede that (for intellectual property rights) the question is not whether there should be copyright protection – “No-one serious denies this” – the question is how copyright should be protected in the age of the Internet. On this question, he sharply disagreed with M. le president. The President’s solutions were answers provided by incumbents. And such answers, Prof. Lessig says, should be treated with (too put it mildly) skepticism:

From the Hargreaves Report (UK)

Instead, Prof. Lessig pointed out, the future of the Internet is not:

  • Twitter
  • Facebook
  • Google
  • (he hopes) Rupert Murdoch,

the future of the Internet is not here (yet). We need to be careful lest the rules we put in place today (at the behest of incumbents) foreclose the emergence of new developments or lose sight of reality.

Now, of course, Prof. Lessig is engaging in polemical advocacy (just as Pres. Sarkozy was), but the point he raises is important and it is important that “we” get it right. One must accept that the State can lay down rules for its citizens’ use of the internet, just as it can lay down rules for all other aspects of its citizens’ lives. Apparently, this even applies in the USA, but in the UK may be not or may be. The question is: what rules (if any) should it lay down and whose views should it be listening to?

You can watch Prof. Lessig’s speech (which I recommend you do just long enough to admire the space age Stage that proves we really are living in the future) then switch over to the slideshow for the lesson (do persevere past section 1, the alcoholic(s)).

The link to the official (English translation of) the text of President Sarkozy’s speech.

For Hargreaves and some reaction.

The G8’s 2011 communique.

If you still need more on ‘creative destruction’ after watching Prof. Lessig, start here.

Lid dip: Peter Black at Freedom to Differ.

Lessig at e-G8 or Le civilised Internet vs gales of creative destruction Read More »

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

Framing the Convergence Review Read More »

… or, worse, you could be banned for Life

… or, worse, you could be banned for Life Read More »