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Put Another Copyright Act on the Barbie, Mate

By Senior Copyright Counsel, Google Inc.

The Austrialians, makers of excellent wine and all around great folk, are in the midst of a copyright revision process. Here is a link to materials dealing with one aspect of that effort, "Exceptions and Other Digital Agenda" items. The process is worth following as an indication of how fair use and Internet issues are dealt with a fairly mature environment (relative to say 1976 or even 1998). Here is a brief summary of some of the issues from one of by favorite blogs, Kim Weatherall's (the link here takes you to a fuller discussion):

The Private Copying (Time-shifting and Format-shifting) Exceptions

The Bill has exceptions for two kinds of private copying: time-shifting, and format-shifting.

Time shifting is of course where you that is, tape a broadcast (radio or television), at home, for their private and domestic use, to watch or listen at a more convenient time. Good to see that they didn't persist with the 'watch once only' condition....

The format-shifting exception is more complicated. The idea is to allow private copying into different formats. Now, if you think about it, there are two reasons you might want to do that. you might want to format shift in order to 'space shift' - that is, have a private copy to carry around instead of the original hard or CD form, right? Like put it on your iPod. Or, you might want to format-shift because a format has become obsolete, and you want to move your collection to the new format (vinyl records to CDs, for example).

Which is the focus here? The explanatory material refers to both possibilities. But let's have a look at the conditions on format shifting:

1. You can't do just any old format-shift. You can copy from books to any other format; from photographs from electronic format to a hard copy, or from hard copy to electronic; sound recordings from CDs, tapes, records, digital downloads to any other format (not podcasts); or films: from video to electronic format.


2. You can't make a copy from a borrowed, or pirate copy: it has to be your, legitimately purchased or owned material


3. You can copy only for your own 'private and domestic use'


4. You can only make one copy in any given format (eg, one MP3 copy, one digital copy of a VHS film)


5. You can't make 'serial' copies - ie further copies from your format-shifted copy.


6. You can't sell, hire, etc your format-shifted copy.

Now, if this were a true 'space-shifting' exception, the condition that you can only make one copy in any given format is a bit awkward. As a student last week asked - does that mean if you make an MP3 copy, to put on your iPod, you can't also keep the MP3 on your laptop? The answer would be yes. Which is kind of inconvenient, if you are the type who doesn't always carry your iPod around, and uses their laptop as a source of music too. But if it were really a 'obsolete formats' exception, it's not clear that the prevention of serial copying makes all that much sense - surely you should be able progressively to copy your collection from format to format, as they come up. And surely, of course, you would have a condition that related to obsolescence of the format in some way.

Thus the thrust of the government's format-shifting exception is, in some ways, an uneasy compromise between these. Given the focus on iPods in the Inquiry (people were calling it the iPod inquiry, colloquially), it was important that the format-shifting exception attempt in some way to cover that activity. However, the exception can be justified in policy terms more readily on the basis of a need to shift from obsolete formats. If this exception ends up getting challenged, it will be interesting to see what the main justification put forward is - and whether it is accepted by an international tribunal, given the mix of motives apparent from the conditions imposed.

Full post as published by The Patry Copyright Blog on October 12, 2006 (boomark / email).