The Convergence Review Committee today released an Emerging Issues Paper, which highlights key issues for the review and will provide the basis for ongoing consultation with stakeholders.

The committee, appointed by the Minister for Broadband, Communications and the Digital Economy, Senator Stephen Conroy, has invited stakeholders to comment on the issues in the paper or to raise other ideas and suggestions for regulatory reform. Submissions close on October 28 2011.

To download a copy of the Emerging Issues Paper, go to:

http://www.dbcde.gov.au/digital_economy/convergence_review

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A proposed amendment to the US Copyright Act seeks to create equivalent criminal sanctions for internet streaming as currently exist for other types of copyright infringement in the US.

Whilst it is a criminal offence under US law to “reproduce” or “distribute” copyright works without permission (e.g. through illegal peer-to-peer file sharing), it is unclear that streaming technology would be caught within the ambit of these provisions. [1] The new bill, introduced in May this year and passed by the Senate Judiciary Committee in June, seeks to ensure that unauthorised streaming also counts as a criminal offence. The bill is yet to be passed by the full US Senate. [2]

Advocates of the bill say it fills loopholes in the legislation created by advances in technology. According to the new US Register of Copyrights, Maria Pallante, “As a matter of policy, the public performance right should enjoy the same measure of protection from criminals as the reproduction and distribution rights”. [3]

Critics of the bill have queried whether the law could expose individuals placing videos on YouTube, or embedding videos, to criminal prosecution. [4] However, proponents argue that the purpose of the bill is to target criminals whose intention is to exploit copyright works. They say criminal charges for copyright offences in the US are not common and there is no reason why this should change because “performance” is included in the list of actionable offences. [5]

The bill comes in the wake of a report released by the Obama administration in March, which recommended legislative changes to increase the effectiveness of IP enforcement. In particular, one of the recommendations was to “clarify that, in appropriate circumstances, infringement by streaming, or by means of other similar new technology, is a felony” [6].

Whether ramping up criminal provisions for copyright infringement will, on its own, have a material impact on reducing piracy is unclear. Policy-makers around the world are tackling the issue of online piracy with a range of approaches, which include education, delivering better business models and better enforcement, and many believe it is a likely to be a combination of these measures that will lead to the best outcomes.

[1] Nate Anderson, “New bill upgrades unauthorized Internet streaming to a felony”. Ars Technica.

http://arstechnica.com/tech-policy/news/2011/05/new-bill-upgrades-unauthorized-internet-streaming-to-a-felony.ars

[2] S.978: “A bill to amend the criminal penalty provision for criminal infringement of a copyright, and for other purposes.”

http://www.govtrack.us/congress/bill.xpd?bill=s112-978

[3, 5] Terry Hart. “Fears of Felony Streaming Bill Overblown”. Copyhype, 7 June 2011.

http://www.copyhype.com/2011/06/fears-of-felony-streaming-bill-overblown/

[4] Nick Boyan. “Proposed copyright crackdown threatens YouTube lip-sync artists”. WGN News, 10 June 2011.

http://www.wgntv.com/news/wgntv-keenan-cahill-digital-copyright-proposal-june10,0,2120625.story

[6] Executive Office of the President of the United States. “Administration’s White Paper on Intellectual Property Enforcement Legislative Recommendations”, March 2011.

http://www.whitehouse.gov/sites/default/files/ip_white_paper.pdf

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The British Library has negotiated a deal with Google to digitise 250,000 books in the library’s collection – all of which are out of copyright. Google will digitise the full text of the books in the collection and cover the costs of digitisation.

The books date from 1700 to 1870, covering periods of major historical importance including the French and Industrial Revolutions. By restricting the mass digitisation to works which are out of copyright, Google and the British Library have effectively side-stepped the copyright issues that dogged the giant library-scanning Google Books project in the US. In March this year, a US Court ruled that the Google Book Settlement was invalid as it failed to uphold a fundamental principle of copyright law by requiring authors to ‘opt out of’ rather than ‘opt in to’ the Settlement.

And for those critics concerned about a potential Google monopoly over cultural heritage, the new UK agreement provides for all titles scanned to be hosted by the continental digital archive Europeana and the British Library’s own digital archive – as well as Google Books.

In announcing the multi-year partnership with Google, the CEO of the British Library, Dame Lynne Brindley, drew a connecting line between the high-tech project and the 19th Century aspirations that led to the proliferation of public libraries: “It was the ambition of our predecessors to give everybody access to as much of the world’s information as possible, to ensure that knowledge was not restricted to those who could afford private libraries. The way of doing it then was to buy books from the entire world and to make them available in Reading Rooms. We are building on this proud tradition of giving access to anyone, anywhere and at any time.” [1]

Google has digitised 13 million books in similar deals with more than 40 libraries around the world.

[1] Robert Andrews, paidContent: UK, 20 June 2011 at: http://paidcontent.org/article/419-google-will-scan-250000-out-of-copyright-books-for-the-british-library/

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WIPO’s latest step towards international copyright registration is a partnership with Google to build a digital platform for registration of musical works from 11 West African countries. A rights holder will only have to register a work once to make it accessible from each participating country.

Technology partner Google will assist WIPO in developing the system, which will streamline the rights information held by collecting societies in the participating countries and enable cross-border music transactions. The 11 participating countries include Nigeria, Senegal, Gambia and Mali.

WIPO director general Francis Gurry announced the project at an international copyright summit in Brussels on 8 June, saying it would immediately benefit creators and rights holders, who would be more easily identified by people wanting to license their works. It would also help music providers, such as radio stations and streaming services, who wanted to include African music in their offerings. [1]

Google’s d’Asaro Biondo said his company’s involvement was in keeping with its “keen interest in making it easier for creators and performers to be remunerated for their works and in enabling new innovative content services to emerge online”. [2]

WIPO will administer the international system connecting the West African rights holders, while the participating collecting societies will retain ownership of the registration data. Participation in the rights registry will be voluntary.

[1-2] WIPO at: http://www.wipo.int/pressroom/en/articles/2011/article_0017.html

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In a stoush over content rights that is reminiscent of an earlier controversy concerning Facebook, Twitpic recently copped unwanted attention for changing its terms and conditions in such a way as to give it broad-ranging rights over content submitted by users.

Twitpic, a social media site that allows users to post photo and video content to Twitter, changed its terms and conditions on 10 May this year to enable it to distribute user photos to third parties without seeking prior permission [1]. The updated terms grant Twitpic permission to use, reproduce and distribute content “royalty-free”, including for the purposes of redistributing the service through any media channels. [2]

A number of users complained and deleted their accounts before founder Noah Everett made a public apology and sought to explain the reasoning behind the changes: “To clarify our ToS regarding ownership, you the user retain all copyrights to your photos and videos, it’s your content. Our terms state by uploading content to Twitpic you allow us to distribute that content on twitpic.com and our affiliated partners. This is standard among most user-generated content sites (including Twitter). If you delete a photo or video from Twitpic, that content is no longer viewable.” [3] Everett added that in the past, newsworthy content had been taken from Twitpic by other organisations without permission, so Twitpic decided to partner with certain organisations to help distribute content in a fairer way. [4]

But although Everett states that a picture is no longer viewable if you delete it, the terms and conditions actually say that the licence will “terminate within a commercially reasonable time after you remove or delete your media” and that “any sub-license by Twitpic to use, reproduce or distribute the Content prior to such termination may be perpetual and irrevocable”. [5]

Back in 2009 Facebook dealt with similar public outrage when it changed it terms to say that when you deleted an account, any rights previously taken did not terminate. As in the case of Twitpic, Mark Zuckerberg subsequently posted an explanation of the changes and why he believed such changes were necessary. He also claimed that: “In reality, we wouldn't share your information in a way you wouldn't want. The trust you place in us as a safe place to share information is the most important part of what makes Facebook work.” [6]

Social media sites require a certain level of rights from users to operate their services legally. The easiest way to manage risk from a website’s perspective is to take as many rights as possible: the more rights, the less risk there will be liability in the future. However, as the Facebook, Twitpic and other backlashes demonstrate, this is not necessarily the best approach in terms of maintaining good relationships with the user community. If the real intention behind taking rights is simply to make sure a site is covered from potential liability, or is truly to protect user interests, then it is best to be upfront and honest with users before implementing such policies, and only to take as many rights as is truly necessary.

Whether users should be so trusting about the use of their content is another question. Ultimately, an organisation could potentially argue it needs broad-ranging rights for a certain purpose and then later change its mind. If, for example, a particular site was sold off to another entity, a new owner may not choose to exercise the same policy.

[1,4] “Twitpic angers users over copyright grab”. BBC News, 12 May 2011. http://www.bbc.co.uk/news/technology-13372982

[2] Daily Mail Reporter. “Anger as Twitpic changes its terms so it can sell YOUR photos to whoever it wants”. Mail Online, 12 May 2011.

http://www.dailymail.co.uk/sciencetech/article-1386314/Twitpic-changes-terms-sell-YOUR-photos-wants.html#ixzz1QA1cdwof

[3, 4] Noah Everett. “Your Content, Your Copyrights”. Twitpic Blog, 10 May 2011. http://blog.twitpic.com/2011/05/your-content-your-copyrights/

[5] Twitpic Terms of Service.

http://twitpic.com/terms.do

[6] Mark Zuckerberg. “On Facebook, People Own and Control Their Information”. The Facebook Blog, 17 February 2009.

http://blog.facebook.com/blog.php?post=54434097130

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Music Industry Piracy Investigations (MIPI) released a statement in early June to confirm its support for the introduction of a graduated response scheme in Australia to discourage illegal file-sharing. [1] The statement was in response to what MIPI called “misleading media reports” suggesting the music industry had back-flipped on the issue.

‘Graduated response’ schemes – where a series of warning notices are sent by internet services providers (ISPs) to customers who are illegally downloading – are being rolled out by governments in a number of countries including the UK, France and New Zealand, as the music and film industries continue to sustain significant financial losses due to illegal downloading of copyright works. A number of recent media reports also suggest that major ISPs in the United States are close to an agreement with the entertainment industries on an industry-led graduated response scheme for the US. [2]

The content industries in Australia (including music, film and TV, games, publishing and software) all support the introduction of a local graduated response scheme. The Government has encouraged the content industries to work with ISPs to develop an agreed solution on the detail of such a scheme and this process is well underway.

Australian media stories on graduated response regularly report, incorrectly, that the penalty for repeat infringement is always termination of the customer’s internet connection. In fact, only a minority of the schemes adopted by national governments feature the so-called ‘three strikes’ termination approach – most go for a lesser penalty (e.g. fines, temporary suspension of internet account).

According to the general manager of MIPI, Sabiene Heindl, the Australian music industry has made it clear that an industry-led Australian code to deal with illegal file-sharing would require effective sanctions for repeat infringers. While it would be a small minority of people who would ignore repeat warning notices, she said, research showed that notice-upon-notice schemes were unlikely to achieve the goal of migrating consumers to legitimate online sources of content unless an effective penalty was ultimately involved.

Temporary suspension of the internet was the sanction preferred by many Australian content industries for an industry-led code, Heindl said. [3]

[1, 3] MIPI media release at: http://www.mipi.com.au/Home/

[2] PCWorld, 23 June 2011 at: http://www.pcworld.com/article/230954/isps_may_join_fight_against_piracy.html

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