🚀 go-pugleaf

Sylvia Else wrote:
> netvegetable quoted:
>> The US-Australia Free Trade Agreement poses a grave threat to the entire
>> Australian software development industry due to the legal framework on
>> intellectual property which is required upon adoption of the pact, the
>> Open Source Industry Association and Linux Australia have warned.
> 
> Can anyone point to anything specific in legislation before the 
> Australian Parliament that is a source of concern in respect of software?


Here's some examples:

Schedule 9, item 154: This creates a new criminal offence 'significant
infringement of copyright'. This is of concern to software developers
because it makes conduct that _results_in_ copyright infringement, even
if that conduct is not in itself an infringement of copyright.

For example, if Alice writes a software program to play music from a CD,
and then Bob uses that software to copy a CD to his hard drive and makes
it available over a P2P network, then Alice could be charged under the
new offence, even though it was Bob that infringed copyright.

There is a discussion on this on page 17 of this document:
http://www.aph.gov.au/library/pubs/CIB/2004-05/05cib03.pdf


Schedule 9, item 186-9: These items extend current copyright law to
include temporary copies of data (for example, the chunk of audio data
held in RAM by your CD player). Although copying "as part of a technical
process of use" do not infringe copyright, the definition of "use" is
muddy enough that things like moving a song to an iPod (etc) may be
infringing, due to the copies made in the computer's RAM, the 
USB/firewire chipset buffers, the cable itself, and so on. This may have
significant impact on the way software is able to access such data,
especially in the future as new forms of storage are developed.

These items also do not exempt copying as a process of use where the
original is infringing. This means that an end-user of 'pirated' 
material becomes infringing, where previously it was only the person who
produced the original who was infringing.

These items are discussed on page 21-2 of the above document.


Item 191: Places significant conditions on Australian ISPs. 
Interestingly, it allows the courts to order an account terminated by an
ISP if a copyright violation has occurred, but doesn't actually specify
that the account is that which performed the infringing activity! There
is also reference to 'take-down notices', but no specification of how
this process works. This could be misused, for example by competitors to
impede a business.

This is discussed on page 26-7 of the above document.


Another aspect that is not part of the current legislation is 
technological prevention measures (TPM) ant anti-circumvention laws.
They are required by the FTA, but there is a two year period for them to
be implemented. They are a huge concern to the software industry,
because they control the way people can access material, even material
they have legally purchased.

Currently Australia has anti-circumvention laws which prohibit making 
and distributing devices that circumvent measures to prevent copyright
infringement. The FTA requires these laws to be extended in two ways:
   - Using such a device becomes an infringement where it previously
     wasn't
   - The measures are now about 'access control', not prevention of
     infringement.

These are significant because now even accessing media you legally own 
can be a violation of copyright, if you have to circumvent a TPM to do
so. Previously it was legal to do so (though illegal to make the tools
for it). This is particularly relevant to people writing software to
access DVD media, and for similar reasons to the case of Alice and Bob
above.

For example, it was previously legal for me to watch DVDs on my Linux
workstation, using software which circumvents the CSS scrambling,
because use of such devices was not covered, and I was only accessing 
the media, not copying it. This will now be illegal.

Also, consider what happens when works eventually leave copyright
protection (author's death plus 70 years under the FTA). They become
public domain, and anyone is free to access, copy and use them in any
way. However, if they are on a protected medium (eg, 70 years from now),
there may be no way to do so without circumventing the protection, which
under the FTA would be illegal.

This is discussed at length on pages 29-33 of the above document.



Hope this is of some interest to people.

Kieron Briggs,
Web Admin, http://www.andrewwilkie.org.au/
Proudly a member of the Ryde Epping Greens