Last week the Australian Institute of Criminology released its report on Intellectual property crime and enforcement in Australia, with some very interesting findings. I haven't had a chance to go through the whole report yet but I just wanted to make a general comment about this statement, which I find completely unsurprising (at p. 38):

An Envisional study found Australia was the second-largest downloader of online
pirated TV shows in the world (15.6%), behind the UK (18.5%) but ahead of the US
(7.3%). Australians were the leading downloaders of pirated TV programs on a per
capita basis. The report found that increased bandwidth take-up, technological
advances and a high demand for US-based TV shows are some of the reasons that
piracy has boomed. Seventy percent of the piracy occurs through BitTorrent (BT)
(Envisional 2004, BBC News 2005, Reuters 2005). The survey found that the top TV show downloads were 24, Stargate Atlantis, The Simpsons, Enterprise, Stargate
SG-1, OC, Smallville, Desperate Housewives, Battlestar Galactica and Lost (Idato
2005).

Australia is, and has always been, since colonial times, an importer or 'user' nation of copyright-protected materials, so it came as no surprise to me that we were the second-largest illegal downloader of television shows. The fact that Australia is an 'importer nation' was picked up in the Spicer Committee's report and then later with regard to the intellectual property package of the AUSFTA. Back in the ye olde colonial days, the majority of our books were imported from the United Kingdom, with many UK publishers and then eventually some colonial publishers, producing specific 'colonial editions' for sale in Australia. As Martyn Lyons has noted in a chapter of the fantastic A History of the Book in Australia 1891 - 1945, Australia earned itself the reputation as being 'the jewel of Britain's book trade empire.' (see Martyn Lyons, 'Britain's Largest Export Market', in Lyons & Arnold (eds) A History of the Book in Australia 1891 - 1945, 2001, at p. 19).

Until about five years ago, a similar statement could be made regrding Australia's importation of international television shows, predominantly from the United States and, to a lesser extent, the United Kingdom (I think The Bill and Jane Austen miniseries adaptations would comprise a lot of that market!) And, just as in the colonies Australian readers had to pay a considerable amount more than their UK counterparts to purchase the latest fiction, Australians had to wait a long time to see new episodes of their favourite TV shows.

The West Wing is an excellent example - originally it was aired on the Nine Network, who changed the time and date of broadcast so often that many viewers began to resort to Amazon.com to get the latest series on DVD. Eventually (thankfully) it was picked up by the ABC and the sixth and seventh seasons were shown weekly until the end of the series.

With examples like this, it is really no surprise that Australians have turned to the Internet to catch their favourite shows just after they have been aired in the United States. This is not to suggest that I support this type of behaviour but it poses a challenge to the free-to-air networks in Australia to change their business models, and I know a number have. In an article published yesterday in the Sun-Herald newspaper (accessible of the Sydney Morning Herald website here) it is noted that shows such as House and the US version of Kath & Kim are appearing about one-three days after they appear in the States. Yet some very popular shows, for example, Heroes, are still taking over a fortnight to get to our screens, though that is still being described as 'fast-tracked'. Not fast enough, clearly.

Labels: catherine, copyright, enforcement, infringement, piracy

From the Creative Commons blog:

THE “IP” Court Supports Enforceability of CC Licenses
Brian Rowe, August 13th, 2008

The United States Court of Appeals held that “Open Source” or public license licensors are entitled to copyright infringement relief.

The Court of Appeals for the Federal Circuit (CAFC), the leading IP court in the United States, has upheld a free copyright license, while explicitly pointing to the work of Creative Commons and others. The Court held that free licenses such as the CC licenses set conditions (rather than covenants) on the use of copyrighted work. As a result, licensors using public licenses are able to seek injunctive relief for alleged copyright infringement, rather than being limited to traditional contract
remedies.

Creative Commons founder Lawrence Lessig explained the theory of all free software, open source, and Creative Commons licenses upheld by the court: “When you violate the condition, the license disappears, meaning you’re simply a copyright infringer. This is the theory of the GPL and all CC licenses. Put precisely, whether or not they are also contracts, they are copyright licenses which expire if you fail to abide by the terms of the license.” Lessig said the ruling provided “important clarity and certainty by a critically important US Court.”

Today’s ruling vacated the district court’s decision and affirmed the availability of remedies based on copyright law for violations of open licenses. The federal court noted that ignoring attribution requirements contained in the license caused reputation and economic harm to the original licensor. This opinion demonstrates a strong understanding of a basic economic principles of the internet; attribution is a valuable economic right in the information economy. Read the full opinion.(PDF)

Creative Commons filed a friends of the court brief in this case. Thanks to all the cosponsors Linux Foundation, The Open Source Initiative, Software Freedom Law Center, the Perl Foundation and Wikimedia Foundation. Significant pro bono work on this brief was provided by Anthony T. Falzone and Christopher K. Ridder of Stanford’s Center for Internet & Society. Read the full brief.

Labels: cases, catherine, copyright, Creative Commons, enforcement, free software, open source

Earlier in the week SMH reported that the Government is considering forcing ISPs to disconnect users who access pirated material (three strikes and you're out, UK style).

Kim Weatherall has done an excellent overview of the problems with this approach.

Labels: abi, enforcement, piracy