[LINK] Fwd: Review of Format-Shifting Exceptions

[Antony Barry]

Begin forwarded message:

> From: "Laura Simes" <LSIMES at nla.gov.au>
> Date: 20 February 2008 8:07:03 PM
> To: undisclosed-recipients:;
> Subject: Review of Format-Shifting Exceptions
>
> Dear ADA members,
>
> The Attorney-General's Department has released an issues paper  
> relating to the format shifting provisions allowing individuals to  
> format shift their photos and films (Sections 47J and 110AA  
> Copyright Act 1968) available here.
>
> The purpose of the paper is to invite submissions on whether  
> sections 47J and 110AA are operating satisfactorily or whether  
> these provision need to be modified. The paper asks whether they  
> should be broadened, or whether they should actually be made more  
> restrictive.
>
> Some thoughts on these provisions:
>
> - These format-shifting provisions should be less prescriptive
> The photo format-shifitng provision only allows users to shift  
> photos from hardcopy to digital or vice versa. It does not allow  
> users to make a digital copy of their digital photos. In contrast,  
> the 'ipod' provision (section 109A) allows users to take music in a  
> digital form and copy it onto their computer or ipod so they can  
> listen to it on these devices. It would seem logical that users  
> should also be able to copy photos that they have in a digital form  
> onto their computers or others devices they own such as mobile  
> phones or devices such as MP3 players with photo viewing capability.
>
> The format-shifting provision for films is more prescriptive in  
> that it only allows users to take a video that they own, and shift  
> it into a digital format. For example, this provision does not  
> allow users to shift a DVD into a digital format, for example, in  
> order to watch the film on a device such as iPod video.
>
> Under these provisions, if a person uses a format-shifted copy for  
> commercial gain then the exceptions no longer apply, and their  
> actions could be infringing conduct. Because of these controls,  
> there seems no reason why the format shifting provisions could not  
> be broadened without having a detrimental effect on cpyright owners.
>
> - Should contracts prevent consumers from using the format-shifting  
> provisions?
> Even though these provisions have given users the right to make  
> copies or change the format of copyright material they own, these  
> rights can be excluded by contract. So although a consumer may  
> purchase a photograph or video, the copyright holder could include  
> a term that excludes or modifies the user's ability to utilise the  
> format-shifting provisions. This signifantly decreases the effect  
> of the provisions. In order to preserve these provisions, the  
> Copyright Act should provide that these rights cannot be modified  
> or excluded by contract.
>
> - Technological protection measures (TPMs)
> The Copyright Act 1968 makes it an offence to break technological  
> protections measures, or digital locks. Therefore, if a user owns a  
> photograph or video containing some kind of copy-protection on it,  
> they will be unable to utilise the format shifting provisions,  
> since it would be illegal for them to override or break copy- 
> protection. So if a consumer purchases photographs in digital  
> format, but the photographs are locked up to prevent them from  
> being printed out, the consumer is unable to format shift them.
>
> - Flexibility in the Copyright Act
> While these format-shifting provisions are important to users,  
> because they are so complex and prescriptive it is inevitable that  
> users are still prevented from format shifting copyright materials  
> in number of scenarios what would be non-commercial and would not  
> affect copyright holders economically. Often these uses would also  
> be of great practical or cultural value. As the ADA suggested  
> during the Attorney-General's review "Fair Use and Other Copyright  
> Exceptions: An examination of fair use, fair dealing and other  
> exceptions in the Digital Age", it would be preferable to take a  
> more flexible approach that is not limited to an exclusive set of  
> purposes.
>
> A more flexible approach is also preferable as, particularly in the  
> case of the film format-shifting provision, these exceptions in  
> their current format are likely to date quickly and become far less  
> useful as technologies change. As videos become less common, this  
> exception will lose its value and it is likely that users will  
> begin to want to shift their DVDs into new formats, but this  
> provision will not allow that. It will become necessary to  
> introduce yet another exception and add to the complexity of  
> copyright law.
>
> I'd be interested to hear your thoughts on these format shifting  
> provisions, and any comments / criticisms you might have of the  
> provisions as they currently stand. For example:
>
> - Do you think these provisions 'strike the right balance' between  
> copyright holders and users of copyright materias, or do you see  
> problems with them?
>
> - Are there format-shifting activities that you wish to undertake  
> that these provisions do not allow?
> - Have you had any problems format-shifting materials because of  
> anti-copying / digital locks (TPMs) or because of restrictive terms  
> and conditions in a contract?
>
> Could you please get any comments to me by Wednesday 27 February.
>
> Cheers,
> Laura
>
> Laura Simes
> Copyright Advisor | Australian Libraries Copyright Committee
> Executive Officer | Australian Digital Alliance
>
> t: +61 2 6262 1273 | f: +61 2 6273 2545 | e: lsimes at nla.gov.au
>
> http://www.digital.org.au/alcc
> http://www.digital.org.au
>