Policies/Copyright

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Official Party Document
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Preamble

Copyright laws are a statutory monopoly artificially applied to information and culture that are traditionally justified as a balance between the rights of content creators and the rights of society. Properly applied, such laws encourage creative output by providing a limited monopoly for artists and writers over the use and distribution of their work. On expiry of copyright (which originally lasted for 28 years) work entered the public domain to be used and built on by others.

The overreach of copyright

In recent times the essential balance underlying copyright law has been lost, and a mechanism intended to serve the interests of the general public is now threatening fundamental rights and cultural growth. Copyright duration has been repeatedly extended, and now persists for 70 years after the death of the original creator. This massive duration is actively harmful for the creative community,[1] because it kills the flow of material to the public domain, denying the opportunity to draw on it. Perpetual copyright benefits only large businesses, and encourages them to reuse old content rather than undertake relatively risky and expensive investments in new material.

Higher duration has been paired up with increasingly draconian enforcement. Enforcement of copyright has encroached into the realm of non-commercial use—a recipe for abuse of the general public. Individuals are now being prevented from listening to public radio,[2][3] or fined millions of dollars for downloading a handful of songs.'[4] Community groups and charities have been threatened with legal action for allowing children to perform Christmas carols,[5] and corporations are preventing access to public footage of historical events.[6][7] The rights of the general public are being trampled in the name of protecting obsolete, rent-seeking business models.[8]

Seeking to defend their behaviour, lobbyists and corporate interests have adopted terms like ‘piracy’ and ‘theft’. However, when normal behaviour such as culture sharing is criminalised, everyone is a pirate. The Pirate Party has adopted the term to draw attention to this fact, and to focus attention on threats to a range of fundamental rights:

  • Privacy has been directly undermined by attempts to force ISPs to monitor private communications in the name of copyright enforcement.
  • Participation in the free market is threatened by copyright bills such as SOPA and PIPA, which would have granted US copyright holders unilateral power to shut down the websites of other businesses anywhere in the world on the basis of an allegation that the site "enabled" copyright infringement.[9]
  • The presumption of innocence is taken away by ‘three strikes’ or ‘graduated response’ laws which allow Internet users to be disconnected by copyright holders upon an allegation and without fair trial or due process.[10][11]
  • Free speech is similarly threatened by compulsory disconnection. The Constitution contains an implied guarantee of freedom of communication in relation to political matters, which the High Court has determined is essential to the proper functioning of Australian democracy. Disconnection interferes with the right to assembly and political communication, and violates the Constitution as well as High Court determinations and international covenants. The Internet is essential for everything from financial affairs to childhood education, and laws enabling disconnection are a frontal assault on free speech and modern life.
  • Consumer rights are being eroded as technology becomes increasingly crippled though measures such as Digital Rights Management (DRM). DRM can be a prelude to surreptitious surveillance and unauthorised data collection. It cripples culture and knowledge distribution, and is an electronic equivalent of a barbed wire fence around data consumers rightfully own.
  • Access to our cultural heritage is jeopardised by the (thus far) successful campaign to impose a ‘forever less one day’[12] period of copyright duration. All copyrighted works are, to some extent, based on or inspired by prior work. Modern attempts to combine perpetual duration with the prevention of reuse and remixing threaten the mechanisms of progress and impose restrictions that creators have never faced before. They amount to a strangling of the creative process.

Reforming copyright

Placing copyright law in direct opposition to fundamental rights guarantees failure. File and culture sharing are, predictably, continuing to grow in defiance of all attempts to control it,[13] and recent attempts to impose additional enforcement were crushed by determined opposition in the European parliament and US Congress. People have always shared poetry, music and culture, and modern copyright laws fail because they attempt to criminalise innate human behaviour.

Copyright is changing, and we are seeing a completely new and different social understanding of copyright – a generational shift in the way we relate to and participate in culture. It is thus concerning that the Australian government has announced an intention to consider imposing the thoroughly discredited ‘three strikes’ disconnection model on Australian Internet users. Copyright was written to serve the needs of the general public, and this purpose is not accomplished by criminalising an entire generation. Fundamental rights do not need to be “balanced” with copyright enforcement.

A copyright law for our time must combine the balanced approach of the past with recognition of the situation we confront in the present. Normal interactions in the digital sphere should no longer be monitored or threatened. The digital realm offers artists and creators vast new opportunities for exposure, free of old-fashioned limits on distribution, and the overwhelming weight of research shows that file sharing has not reduced revenue to artists.[14][15][16] The law should account for this. Copyright duration should also be contained to around 15 years — which is calculated to be the optimal term to drive maximum creative endeavour.[17] Creative remixing and reuse of existing content must be allowed, as preventing them is equivalent to attacking freedom and progress itself.

The Pirate Party proposes the following reforms in order to ensure that copyright law serves the interests of the general public.

Policy text

Reduce copyright duration to 15 years

  • All material to have been copyrighted for longer than 15 years will enter the public domain.
  • Moral rights entitling creators to be identified with their work will remain unchanged.

Remove copyright restrictions applying to publicly funded material

  • Crown copyright will be abolished for all material produced by government, including:
    • Bills, statutes, regulations, ordinances, by-laws and proclamations, and explanatory memoranda or explanatory statements relating to those materials;
    • Judgements, orders and awards of any court or tribunal;
    • Official records of parliamentary debates and reports of parliament, including reports of parliamentary committees;
    • Reports of commissions of inquiry, including royal commissions and ministerial and statutory inquiries;
    • Other categories of material prescribed by regulation.
  • Open Access provisions will be for required for all publicly financed scientific and academic research.
    • Publicly financed institutions will be required to release all scientific and academic works under principles of Open Access.
    • Publicly financed institutions will be required to provide all raw data collected (anonymised as necessary) in an open and searchable format, via government infrastructure if required.
    • Repositories will be required to make publicly funded research available to the public under principles of Open Access, and free of charge.
  • Government funded software will be made open-source, excepting cases where disclosure threatens national security.

Safeguard current exceptions to copyright

  • Material created in formats accessible to persons with reading disabilities will remain exempt from copyright restrictions, and the exemption will be codified to explicitly over-ride any international export/import restrictions.
  • The Copyright Act will be clarified to ensure that programming made available on-line by radio stations is considered a broadcast for licencing purposes.

Create additional exceptions to copyright

  • A generic "fair use" exception will apply to commercial and non-commercial use of copyright material.
    • Use would be subject to a requirement for fairness and reasonableness, and would note:
      • The purpose and character of the work,
      • The nature of the work,
      • The amount of material used, and
      • The probable cost to the copyright holder.
  • A specific exception will be implemented to protect sampling and artistic quotation.
    • This will cover the creation of remixes and parodies, and will provide a legal basis for quotation rights on sound and audiovisual material (including musical compositions and theatrical scripts) modelled on the allowances currently applied to text.
  • A specific exception will be implemented to protect transformative use.
    • Transformative use would require the incorporation of a new creative element not present in the original work.
    • The moral rights of the original artist to be associated with the work would remain intact.
  • A specific exception would be created allowing consumers of copyrighted material to format shift and back up such material for private and domestic use.
    • This would be considered fair use and will override conditions imposed through product sale and licencing.
  • A specific exception would be created allowing libraries and digital archives to digitise their collections.
    • The requirement for archivists to consider documents individually, on a case by case basis, will be removed to enable large collections to be catalogued and stored.
  • A specific exception will be implemented to protect all non-commercial distribution, including file sharing.

Curtail attempts to restrict consumer rights

  • The 'Technological Protection Measures’ within the Copyright Act 1968—which grant legal foundation to the enforcement of Digital Rights Management (DRM)—will be repealed.
    • Any restrictions or limitations on purchasable items enacted in the name of copyright protection will be required to include information to consumers on the nature of the restrictions, the additional software that will be installed, and any tracking or data collection that will be imposed.
    • A 14 day grace period will be legislated allowing consumers to return any product which includes DRM.
    • Products which include DRM will be considered as being licensed, not sold. Accordingly promotions and offers for such products will be obliged to state that the sale is for a licence only.
  • Restrictions on format-shifting will be banned in cases of:
    • Technological format-shifting, whether physical or digital,
    • Translation into another language, and/or
    • Adaptation for the blind, deaf or similarly impaired, including Braille translation, transcription of speech, or creation of spoken books.

Promote fair pricing and discourage artificial market segmentation

  • Implement the recommendations of the IT Pricing Inquiry[18] in particular:
    • Lifting the parallel importation restrictions still found in the Copyright Act 1968 (Cth).
    • Allowing consumers to circumvent technological protection measures that control geographic market segmentation (see "Curtail attempts to restrict consumer rights" above).
    • Educating Australian consumers and businesses as to how to circumvent geoblocking mechanisms, and what rights might be affected as a result.
    • Creating a right of resale in relation to digitally distributed content.
    • Restricting vendors' abilities to lock digital content into particular ecosystems.
    • Introducing a ban on geoblocking to address persistent market failures.
    • Amending the Competition and Consumer Act 2010 (Cth) so that contracts or terms of service attempting to enforce geoblocking are considered void.

References

  1. Center for the Study of the Public Domain. "The Incredible Shrinking Public Domain." Center for the Study of the Public Domain. No date. http://web.law.duke.edu/cspd/publicdomainday/2012/shrinking (Accessed 6 March, 2013).
  2. Bridge, Sarah. "Stores under attack from the 'music licence Gestapo'." This is Money. 16 October, 2011. http://www.thisismoney.co.uk/money/news/article-2049502/Stores-attack-music-licence-Gestapo.html (Accessed 20 February, 2013).
  3. Lavender, Jane. "Radio ga ga at Bolton pasty shop." The Bolton News. 8 October, 2008. http://www.theboltonnews.co.uk/search/3735632.Radio_ga_ga_at_Bolton_pasty_shop/ (accessed February 20, 2013).
  4. Russia Today. "Copyright madness: $1 million for 7 songs." Russia Today. 21 April, 2009. http://rt.com/usa/copyright-madness-1-million-for-7-songs/ (accessed 22 April, 2013).
  5. Maxwell, Andy. "Copyright Cops Target Kids' Schools and Community Centres." TorrentFreak. October 15, 2008. http://torrentfreak.com/uk-copyright-cops-target-kids-schools-community-centers-081015/ *(accessed 22 April, 2013).
  6. Rasheed, Sarah. "Germans Blocked on YouTube from Watching Russian Meteor Strike Videos." American Live Wire. 21 February, 2013. http://americanlivewire.com/germans-blocked-on-youtube/ (accessed 22 April, 2013).
  7. Ammori, Marvin. "Why Tweeting MLK's "I Have a Dream" Speech Now Constitutes Civil Disobedience." Slate. 18 January, 2013. http://www.slate.com/blogs/future_tense/2013/01/18/internet_freedom_day_why_tweeting_mlk_s_i_have_a_dream_speech_is_now_civil.html (Accessed March 2 2013).
  8. Hunton & Williams, "Study on Online Copyright Enforcement and Data Protection in Selected Member States." European Commission DG Internal Market and Services. November 2009. http://ec.europa.eu/internal_market/iprenforcement/docs/study-online-enforcement_en.pdf (accessed April 22, 2013).
  9. Stop Online Piracy Act. HR 3261, s 103. 112th Congress (2011). http://www.govtrack.us/congress/bills/112/hr3261/text (accessed 20 February, 2013).
  10. Taylor, Josh. "First person fined under NZ three-strikes law." ZDNet. 30 January, 2013. http://www.zdnet.com/au/first-person-fined-under-nz-three-strikes-law-7000010535/ (Accessed 20 February 2013).
  11. Wikipedia. "HADOPI law." Wikipedia. http://en.wikipedia.org/wiki/HADOPI_law (accessed 22 April, 2013).
  12. Congressional Record — House. H9946, 7. October 7, 1998. http://www.gpo.gov/fdsys/pkg/CREC-1998-10-07/pdf/CREC-1998-10-07-pt1-PgH9946.pdf#page=7 (Accessed March 27 2013).
  13. Palo Alto Networks. "New Report Shows Dramatic Increase in P2P Filesharing and Streaming Media Worldwide." Palo Alto Networks. June 27, 2012. http://www.paloaltonetworks.com/news/press/2012/New-Report-Shows-P2P-Filesharing-Streaming-Media-Use-Exploding-Worldwide.html (Accessed February 20 2013).
  14. The Economist. "Having a ball." The Economist. 7 October, 2010. http://www.economist.com/node/17199460 (accessed 22 April, 2013).
  15. Oberholzer-Gee, Felix & Strumpf, Koleman. "File-Sharing and Copyright." Harvard Business School. 16. http://www.hbs.edu/faculty/Publication%20Files/09-132.pdf (accessed 22 April, 2013).
  16. Masnick, Mike. "Yet Another Study Shows That Weaker Copyright Benefits Everyone." 17 June, 2009. http://www.techdirt.com/articles/20090617/1138185267.shtml (Accessed 20 February 2013).
  17. Pollock, Rufus. "Forever Minus a Day? Calculating Optimal Copyright Term." Review of Economic Research on Copyright Issues. Volume 6, issue 1, pp35-60 (2009). p35. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1436186 (Accessed 22 April 2013).
  18. House of Representatives Standing Committee on Infrastructure and Communications, Parliament of Australia, At what cost? IT pricing and the Australia tax (2013) xii–xiii.