Alternatives to Copyright Working Group

The next meeting of the Alternatives to Copyright Working Group will take place on Thursday 7 April 2016 at 8:30 pm AEST (8:00 pm ACST; 6:30 pm AWST). Discussions typically go until 10:30 pm or later, so feel free to drop in if or when you can.

A draft has been produced from the research and discussions of the Working Group:

The next meeting will specifically work on:

  1. Modifications to this draft.
  2. A definition of ‘commercial’ and/or ‘non-commercial’.

The meeting will take place on IRC in the #ppau-pdc channel. Access and instructions are on the website:

The intended outcomes of the policy and specific questions the Working Group should consider are listed here: The Working Group is currently researching answers to those questions, but feel free to add any further outcomes and questions, as well as other material that is relevant for consideration at the next meeting.

Minutes of previous meeting are available here:

Perhaps we could extend the concept of the ‘First sale doctrine’ (which has difficulties with digital copies) and create a ‘First copy doctorine’ that applies to licensed or contracted copies.

So you have a right to transfer the copy and the rights you received over it once, and you lose all the rights you passed on.

It would help to support distribution on FRAND (Fair Reasonable And Non-discriminatory) Terms, prevent price gouging etc as those on ‘good terms’ can resell the product to those discriminated against.

At the last meeting we talked about ‘distributors’ as one of four actors (the others artists, investors, consumers which are mentioned in Corroy Doctorows ‘Information doesnt want to be free’), i think that got us bogged down when looking at distributors.

In our system today ‘authorized online distributors’ are also trying to be law enforcement through DRM, they want to be able to verify what people do with their licensed goods after its sold. That is the key differentiator between online good and real goods.

We need to consider the ‘consumers right to anonymous ownership of digital goods’… i.e. the right to own digital products outside DRM systems, its a must IMO.

As an example of how broken copyright laws are, consider this;

Google “http” give 15,160,000,000 results
Google “all rights reserved” gives 4,750,000,000 results

All rights reserved is a legal statement meaning that the content its attached to cannot be legally copy or distributed, An example of copying content is viewing it in your browser.

So 31% of all web content is accessible, but illegal to access. Its likely everyone who uses the internet violates copyright every day without even knowing it.

Our policies should consider addressing such misrepresentation of copyright status by content owners. If they claim all rights reserved they shouldn’t be allowed to make it publicly available.

It’s an interesting situation. Historically, ‘all rights reserved’ has been a shorthand for ‘all rights that can be reserved are reserved’ (because there are many exemptions), and was used to denote copyright at a time when copyright notices were necessary. Now that they’re not needed, it’s implicit that all rights are reserved to the extent possible, unless there’s some licence attached.

There’s a murky area here where there’s an implied licence to view the content in a browser; this does seem incompatible with the statement ‘all rights reserved.’ The reason I say that this is murky is because copyright is not infringed by temporarily reproducing a work ‘as part of the technical process of making or receiving a communication’ (s 43A).

I would posit that at least 31% of content online infringes some sort of copyright despite this (simply because people don’t understand copyright). And I would also agree that copyright suffers from misrepresentation, especially where people are reluctant to rely on exemptions because of the threat of litigation (which, even if ungrounded, is often enough of a deterrent).

Isnt that exemption for midpoints, like proxies and caches, or like a ‘common carrier’ in US terms, rather than applying to endpoint such as a browser ?

It isn’t actually. According to Davison, Monotti and Wiseman (2016), s 43A ‘includes temporary reproductions made when caching, browsing or viewing copyright material online’. There was discussion in 2000 by the IPCRC as to whether s 43A was wide enough to encompass proxies and caches. An amendment was recommended to explicitly allow for this, but it wasn’t adopted. Optus submitted to the ALRC Copyright and the Digital Economy inquiry that s 43A only allows copying after a user requests a download, and not before.

So, essentially, it is intended to cover browsing, but the situation isn’t completely clear when it comes to caches.

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At the last meeting we talked about ‘distributors’ as one of four actors (the others artists, investors, consumers which are mentioned in Corroy Doctorows ‘Information doesnt want to be free’), i think that got us bogged down when looking at distributors.

I’m not sure why distributors or investors need to even be considered in any copyright or alternative laws. I would expect that, where distributors exist at all, any rights they have come purely from being agents of the author.

It relates to the powers distributors tend to have in terms of disseminating content, and the interests of investors who are often responsible for funding the creation of materials, even if they don’t directly produce anything.

The issue broadly involves determining whether the legal relationships between creator and distributor or creator and investor that are permitted by the Copyright Act are satisfactory.

For example, the effect of exclusive licences between copyright holders and distributors in Australia has reduced the efficacy of services like Netflix, which is negative for both creators and consumers.

In regard to investors, it’s usually the investor in a big-budget project that has the greatest interest in getting a return. If a film costs several million dollars to produce, can an alternative to copyright adequately secure that kind of financing?

Jotting down some thoughts on some of the issues we were looking into at the last meeting.

This would be very difficult without some sort of screening and registration process. Because patent applications are subjected to examination before being granted there are comparatively few cases where novelty of an invention is in dispute (especially as such disputes can be resolved by challenging the application prior to grant).

On the whole, moral rights would appear to be compatible with our directions, but the length may be excessive, lasting the life of the author. Attribution isn’t necessarily an issue, but integrity might be.


  • Berne Convention (1886)
  • UCC Geneva (1952)
  • UCC Paris (1957)
  • TRIPS (1994)
  • WIPO Copyright Treaty (1996).
  • ACTA (2011)

Bilateral/regional FTAs

  • Singapore-Australia (2003)
  • Australia-US (2004)
  • Thailand-Australia (2004)
  • Australia-Chile (2009)
  • Malaysia-Australia (2012)
  • ASEAN-Au-NZ (2014)
  • Korea-Australia (2014)
  • China-Australia (2015)
  • Japan-Australia (2015)
  • Trans-Pacific Partnership (2016)

Some helpful guidance on this comes from Christian Engström and Rick Falkvinge, The Case for Copyright Reform (2012), 82–84:

Wouldn’t it be better to adapt the protection times according to what is reasonable for different categories of works?

This is actually what I (Christian Engström) thought myself … . I … thought it was quite reasonable to have a longer protection time for computer programs, since they quite often continue to be useful long after they were written. Code that I wrote in 1984-86 still runs in production today, and continues to generate income for that company. This is something different than a pop song, which at best is popular for a year or so, before it is forgotten to leave room for new songs. This is what I felt.

But my friend, who has a background as a musician (but is now a copyright lawyer, since that is an easier way to make a living), had the completely opposite opinion. He saw computer programs as something that you upgrade at least every second or third year. Programs older than that would have no commercial value, so it ought to be enough with a quite short protection time for computer programs. Music, on the other hand, could very often live forever, so the protection time for music ought to be much longer. This is what he felt.

And this is how it normally is, my friend, who had had similar discussions with other people, told me. For the kind of works that is closest to your own heart, you would normally find it reasonable to have a longer protection time, but shorter for everything else. This is how most people feel, it appears. …

But if you look at the issue from an investor’s point of view, things become different. The music industry may be very different from the computer software sector, but they have one thing in common. Money is money, regardless of what sector you choose to invest it in.

When an investor makes the decision to invest in a project in any industry – it may be music, lm, computer programs for the mass market, or anything else – he will calculate his business case with a certain time to get a return on his investment. If the project goes according to plan it is supposed to cover its cost and make a profit within x years. If not, it is a failure. …

This is of course even more so in the cultural sector. Who can predict what will be cool and hip two or three years from now, in such a fast moving landscape as culture. Most cultural projects are expected to pay for themselves and make a profit within a year.

By looking at the protection times from an investor’s point of view, we can justify having the same protection time for all works, even though they are different. The purpose of the economic exclusivity part of copyright is to attract investors to the cultural sector. And investors think in the same way regardless of what they are investing in.