November 2008

Resale royalty right

The previously foreshadowed bill to introduce the resale royalty right has been introduced into Parliament.

The Resale Royalty Right for Visual Artists Bill and EM can be found here.

The Bill has been referred to the House’s (not the Senate’s) Standing Committee on Climate Change, Water, Environment and the Arts for consideration and an advisory report to the House by 20 February 2009.

Presumably, if the Government and the “Coalition” can reach agreement on the terms of the Bill, it won’t be necessary to deal with those pesky independents and greenies.

Lid dip, the Australian Copyright Council.

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Parallel imports and books

The Productivity Commission has published its issues paper on its reference relating to the parallel importation of books.  You can download the pdf here.  At present:

(1) anyone may “parallel” import a book for their own use (i.e., not to resell or distribute it);

(2) books first published after 22 December 1991 and not published first simultaneously in Australia may be parallel imported;

(3) for any other books, however, there is a very convoluted regime,

see Copyright Act 1968 s 44A and 112A.

Things have apparently changed since all the earlier studies by the then Prices Surveillance Authority, the ACCC and the Ergas Committee as now they would have us believe:

While requiring the Commission to examine options for reform, the terms of reference should not be taken as meaning that the current restrictions are necessarily inappropriate. That is a matter to be examined in this study.

Nonetheless, the Productivity Commission appears to have started from the former Prices Surveillance Authority’s proposition that the right to control imports is some how additional or extraneous to copyright:

It has been argued that restrictions on the parallel importation of books provide an incentive, additional to that provided by copyright alone, for people to create literary works.

At an impressionistic level, one clear benefit under the current regime has been the faster availability of paper-back editions. My recollection is that the Prices Surveillance Authority found paperbacks were usually not published until at least one year after the publication of the hardback edition in Australia – and often longer.  Walk into any Dymocks, Borders or whatever these days and you will often see 2 or even 3 different versions of the same book – the UK paperback, the US paperback and often the trade or mass market versions as well (the ones that smudge when you press your thumb too hard on the page).

It will be very interesting to see how the Productivity Commission explains its competition theory to support repeal when anyone with an internet connection can jump online and order the book from overseas (for their own use).

The sector most affected by the current regime might be thought to be the booksellers who can’t use this form of arbitrage (at least for books first published simultaneously in Australia – unless they already have a written or verifiable telephone order).  Would we all be better off if the booksellers could use the threat of parallel importing in volume to negotiate a better price from the the local publisher/distributor?

It will also be interesting to see how the Productivity Commission deals with possible cultural considerations, which have proved so powerful in Canada in trying to block parallel imports.  The Productivity Commission raises the possibility, however, that such issues can be better addressed by direct subsidies – so in the interests of market forces operating, the Government would have a more active role in trying to pick ‘winners’ and taxpayers generally would subsidise readers.

Your comments should be submitted to the Productivity Commission by 20 January 2009.

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The Internet Wars (copyright campaign) come to ISPs down under

The big movie studios have brought proceedings against iiNet, one of the larger (in a non-Bigpond sort of way) ISPs seeking to impose liability on the ISP for infringing downloading by its subscribers.

The Application is here (pdf) and the Statement of Claim is here (pdf).

Various analyses:

Nic Suzor has a detailed view here

Kim Weatherall here

Australian PC Mag here

The Film Industry outlines its position here

IPRoo carries a quote from the Internet Industry Association’s CEO here.

As you can see from this coverage, this has really set the cat among the pigeons.  The striking thing about this action, however, is that one might have characterised iiNet as a general purpose ISP, not existing just to promote infringing downloads like the Court’s found Mr Cooper’s or substantially like Kazaa.

Thus, the distinction propounded by the record companies in Cooper (at [123]) and both questioned and side-stepped by Branson J (at [40]) appears to be very squarely off the table. So, as many of the bloggers note, it is not too much of a stretch to claim that the future of the internet is at stake here.  Will the old Copyright Convergence Group‘s analogy to the postal system – imposing liability only on the person who introduces (posts) the material – be confirmed or will we, through the Courts, turn back into a closed, monitored system?

The ISPs can hardly be surprised:

(a) s 101(1A(c) expressly provides for the development of an industry code to establish norms;

(b) the copyright owners have directly attacked the ISPs in Eire;

(c) the UK government has “brokered” some sort of more “pro-active” role on ISPs too.

No doubt, if the matter goes to trial, we can expect to see a volume of evidence about the volume of iiNet’s P2P traffic vis a vis its other activities and, before then, perhaps some applications for discovery of traffic details.

Given that liability appears to be predicated on authorisation, it will also be particularly interesting to see how the movie producers circumvent the prohibition on intercepting communications over a telecommunications system and, perhaps, (if an ISP is a carriage service provider) the prohibition on use or disclosure of information the contents of any communication carried by a carriage service provider.

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