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Wednesday, 1 November 2006
Page: 41


Mr HATTON (11:40 AM) —I find it very refreshing to have a former minister concede that he might have been wrong or that he might not have been able to fix the set of problems he faced while he was a minister. The attempts of governments and ministers to regulate and deal in areas as complex as copyright law, despite the best of intentions—starry-eyed or not—do not always mean that you can fix it once and for all and that you can do it necessarily very easily or readily in an area as difficult as this.

That being said, I wish that when the member for Denison was minister, despite looking at these areas of the new technologies and so on, he might have looked at some of the key issues that are dealt with here in our debate on the Copyright Amendment Bill 2006, particularly fair use. I was born into a penal colony in New South Wales. It moved on from its definition of that to a colony of the empire and then to a self-governing colony which was part of the Commonwealth of Australia. But let us look at where we started and the way in which we have treated people up until now and the way in which they got here in the first place. Many people committing relatively minor crimes were taken in a vast grab bag of legal procedure, legal process and sets of rules which said, ‘If you do this, you’ll cop seven or 14 years of transportation or you may get life; if you go too far and do too much, then you could hang by the noose at Tyburn Gate.’ So the lucky people, I suppose, ended up coming to the penal colony of Australia. But if you look at what very many of them came for within the context of the time, you will see that they came for relatively minor things, although there were certainly some dedicated criminals who were relatively big-time in what they did.

But the principle is this: if you create a set of laws that will make criminals of most people in a society, you can lock a whole lot of them up but you may in fact continue a regime in which people are innately criminal in their activities; they are innately unlawful in their activities. And what have we got with regard to the copyright amendment act? We have that very situation. If you look at the way people actually do things with regard to copying material—and have almost from time immemorial, certainly in the modern era—you will see that most of what people do in the act of taping video programs and watching them at a later date is unlawful under our legislation. It is illegal; effectively it is a criminal act, and we have put people in the same category as our original settlers. Part of the revolution in this is that we might say, ‘What you’ve been doing all this time’—and I am as guilty as hell in that regard, as most other people might be—‘is something we have said is legally not on but we will not punish you necessarily, except for those sets of enforcers from particular publishing companies who have gone to raid people and put them in the slammer.’

I do not have a problem at all with us dealing with people who are pirating material for active sale to the broader community. The problem was with CDs, DVDs and other material—and, prior to that, tapes or whatever—and selling those for profit. The problem has always been with private use. We have not, I think, throughout the whole history of our dealing with the Copyright Act, ever put Australian private users in the central place.

Believe it or not, the Americans have had fair use provisions for a great deal of time. We have been stuck in a position where we have said, ‘What you’re doing is not right and we’ll punish you if you get caught.’ So I think the changes here, particularly in regard to fair use, are very important. What are those fair uses? One is time-shifting, which I have been talking about—making it legal for people to tape TV or radio programs at home for their private or domestic use in order to play them at a more convenient time.

Now, the notion that, having paid for something in the first place, you have to watch it at that particular time and no other is foreign to the way we deal with things on a practical basis. A lot of people tape a lot of things and never have time to go and watch them. They may have the intention of time-shifting, but they will only watch a proportion of what they have taped. So the number of things that are copied is disproportionate to the number actually used by the end user. That is probably part of the archival nature of human beings; they store things away, almost bowerbird-like.

If you read all the copyright material in the legislation you will find that the way in which the legislation has dealt with that has meant that every iteration was, previously, an unlawful act, and people could go into the slammer for doing it. People have not taken that material, gone out to the local community hall, bunged it up on a screen and charged people an entry price to come and see it. If they were doing that there certainly would have been absolute harm to the original copyright holders. They would have been done down.

In the past our legislation, properly, has dealt with that, as it has dealt with it here in this legislation. We are saying, ‘Okay, if you do it just for your own use, in the normal way people do it at home, then it’s okay.’ This is a major step forward. The member for Denison should have grabbed this while he was the relevant minister. And he has paid his obeisance to the parliament and laid his guilt before us in terms of what he could and could not do.

This is partly constrained by the fact that attitudinally we have had a mindset that we could not go this far because copyright has been a straitjacket, where those who own it—not the beneficiaries at the end, the musos or the people who write the books, but fundamentally the major companies—had demanded a really strict regime in regard to copyright. We know what the effect of that has been in the Australian market in terms of access of individuals to that material. But there have also been constraints on the market because we took so much of our material from England, being part of the old empire and Commonwealth, and we held the United States out and stopped them getting to the market with cheaper books, when that was the game in terms of what material was there and whether you could have competition in relation to that.

We also extended this very British notion that we needed to keep this straitjacketed, whereas the Americans had a much stronger fair use provision and argued that if people were not seeking private profit for it they should not be criminalised. Actually, this is a bit difficult because one of the things we are dealing with here is how you flexibly deal with this area and the dynamics of change in a digital era.

In the analog era—of copying stuff on a gestetner or a photocopier, or copying tape to tape—unless you had a very big and very costly process and did it on a privateering basis it was difficult to do those analog conversions and those kinds of duplications. It was of great cost and it was messy. But digitisation has dramatically transformed this landscape. It is now possible to take a full digital copy of material despite the efforts of the major producers to lock those down. And that is something I want to say a little bit more about in a moment. The pirated material of five years ago, which came out as an MPEG1 version of what was being shown in the cinemas—people had taken it by hand-held cameras and so on—were run throughout China and East Asia. They are still available in that sort of format.

There is a capacity now to access this in other ways and to access it digitally, either through downloading through Apple’s site—because Apple has now dramatically expanded what is available through the iTunes site; it is not just music or radio programs—or through a vast number of podcasts. They are provided free; the essential nature of them is that they are in the public domain. But there is other material that they have now started. They started with their Pixar films—very short animated films, starting with the original one when Pixar was founded—and they now have a series of those.

But they have recently dramatically changed the landscape because they are allowing a download of TV series and first release motion pictures. In the original release they had their Pixar films. Even though they were MPEG4 and capable of relatively high resolution, they downgraded that format when they first put them out—they were 320 by 240. In this second iteration they have doubled the size of the picture so that it is 640 by 480. It is almost DVD quality. That creates an entirely new market in terms of the delivery of motion picture material.

But what has happened in the way in which Apple have done this, for instance—and other people are now following them, because Microsoft have launched their Zoom Player, which is a portable media player which is partly dealt with by the provisions that we have here in relation to format shifting—is that Apple have said, ‘Here’s a good which is covered by copyright, but we recognise that under the fair use provisions in the United States you can buy this good in the first place and use it in one particular way.’ But they have gone further and said: ‘If you buy this good from us then we will not only license you effectively to use it on the computer that you originally downloaded it on but also let you download to an iPod and take that iPod with you anywhere you want to in the world to replay it. We will in fact allow up to five different computers to be licensed at any one time if they are in your control.’ Why? Because families have lots of computers these days. It is a family product, and that is the idea in terms of how to do it. So if you legally bought the product and if there is a recompense back to the copyright owner then Apple allows an efflorescence in terms of the formats that it can be used in and the types of technology that it can be used in. You can make it cartable.

There is a greater danger in this area, I think, than what Microsoft has just proposed, because Microsoft has entered the world of being able to share material between different users of its Zoom Player. That is one of the advantages, it has argued. That gets us back to the copyright area that we have seen here in Australia with Kazaa, I think it was—one of the peer-to-peer networking companies. It was set up and made enormous money worldwide but now has enormous debts that it has to pay to people because what it was doing was found to be fundamentally illegal—taking copyrighted material and then swapping that between people. Microsoft potentially puts itself into that position.

I note the density of this bill, which the member for Denison and everyone else dealing with it pointed out, but in this area it is necessarily so, because we no longer live in that analog world and there is the capacity to format shift in a number of fundamental ways. We have to deal with not only the originators of content but of course the fundamental owners of it, and that is the large companies, whether it is the Sony Corporation in America or Apple, which has now bought into Disney studios and will, I think, in the end take over Disney effectively, because Jobs is capable of doing that. He has done this before. There is a dramatic change in the landscape and it is essentially coming from the Hollywood studios, the biggest producers of material that most people want.

There is a correlative thing here that is important for Australia. Our area of advantage is often in the gaming area, and the question of the copyright in gaming is also extremely important because it is digital and can be copied relatively easily. How you protect it is important. So the provisions within this act are trying to allow fair use, either in terms of the time a person watches it or in format—how they watch it or indeed where in the world they watch it. What goes with governing that is a bill which tries to keep pace with a very rapidly moving area.

We have seen from the major companies, the companies in Hollywood but also the distributors, a range of different technologies to keep that copyrighted material locked down. There is a young fellow who has just broken Apple’s locks on the iPod and he says that it is now possible to take what is available from their iTunes store, which was only playable on iPods, to a Zoom Player or to Toshiba’s player. There is another element of this: even though someone is capable of doing it, what is the industry’s response going to be to something that in fact breaks the monopoly of a particular company? Microsoft argues that they will not take that approach, but all the signals are that they will lock it down and just have a single siloed approach in order to try to protect their market.

But it is also the case that this bill needs to deal with much more advanced algorithms to protect data and to protect copyrighted material. They are available now and are coming to market with the advent of HD-DVD, high-definition DVD, from Toshiba and other members of the consortium that they are involved in. Those discs will take about 15 gigabytes of information. The complementary one that is in competition with it is the Blu-ray DVD, which will in fact double that. It will take about 29 to 30 gigabytes of information.

Why are they around? What they have done is to take the same DVD disc that we have been using, which is the same as the CD disc, and change the type of laser that they are using from red through to blue, and with that better laser they can write smaller pits and dramatically increase the amount of material that is placed on any particular disc. That is necessary because high-definition television and high-definition programs are much more rich, not in the content, because that is the same, but in the level of presentation, the degree of richness of the image. It has about five times the amount of storage that you would need. As that penetrates the market for time-shifting purposes and format-shifting purposes, that will need to be taken into account as well.

There is one other piece of technology that should be emerging this year, running strongly into next year, and that is an entirely different approach from the DVD approach to storing content. It takes what is virtually a 3-D bubble and puts the material at different layers. Whereas you are looking at 30 gigabytes for a Blu-ray DVD, this takes that up about 10 times, so that is 300 gigabytes being stored in just one block of information. It is in the nature of the capacity to store high volumes of information and to then rapidly transmit that from its originating source, but the companies that own it need to be able to lock it up.

The other element of this that is important to what happens down the track is the way we deal with the normal fair use provisions that we have had in the past, which this bill directly deals with, in terms of our great institutions of learning. Because so much has now been digitised, we actually have to think about this in different ways. If you think about the way the parliament has addressed this problem of getting information from the media and providing that in a timely way to members of parliament, they have used the old cut-and-paste method with newspaper articles. They physically put them in. Now they make images of them as PDF, portable document format, images and place them at the disposal of members as images. There are a whole range of other ways in which it can be done, such as directly electronically, and that is gradually being done.

There is a series of problems for universities in this age. A whole series of universities have tied up with Google and allowed their material to be scanned and put into Google search engines and offered to the world, some as copyrighted material and some not as copyrighted material. This is a great challenge to the whole world of existing copyrighted material in written form, when you are dealing with the world of books—and some of our libraries are participating in that. The reaction of industry in the first place was simply to say that they were not going to do it, which is why Google suspended it.

This is a dense piece of legislation, but it necessarily needs to be so. This bill has caught up with the times—the times have finally been recognised. In the past 50 years our capacity to use and store material at a different time or in a different format has finally been recognised. This bill says it will not be unlawful to do that—and it is about time it were so. I am glad about that not only for myself but for all the commonality of people who are otherwise designated as criminals or, in the colony of New South Wales, as participating in unlawful behaviour. I congratulate the Attorney-General on taking this major step and I commend Labor’s approach to the bill. (Time expired)