inamerrata

So, the Labor senators also made some recommendations about temporary copies:

Recommendation 15

Labor Senators recommend that the Commonwealth Government implement Recommendations 15 and 16 of the Digital Agenda Review report prepared by Phillips Fox to ensure that temporary reproductions and caching are explicitly protected under Australian law.

I briefly mentioned recommendation 15 of the DAR report when it came out, but not in much depth, and the issue’s worth reviewing.

Recommendation Fifteen

That sections 43A and 111A of the [Copyright] Act be amended to align the exception with the similar exception in the Information Society Directive, by deleting the words ‘of making or receiving a communication’ in subsection (1) and substituting ‘part of the technical process’ with ‘as a necessary and incidental part to any technical process’.

A consequential amendment to the heading to the section will be needed also.

That the sections be further amended by inserting a new subsection to include a definition of ‘temporary reproduction’ for the purposes of the section, as meaning any transient, non-persistent reproduction that is incidental to the primary purpose or act for which the work is made available and which has no independent economic significance.

Recommendation Sixteen

That the educational statutory licence provisions be amended to allow an educational insitution to make active caches of copyright material for the purpose of a course of instruction by the educational institution, in return for a payment of equitable remuneration to the copyright owner.

Here’s what we’ve actually got in the FTA implementation bill (starting on page 155):

188 After section 43A
Insert:

43B Reproduction of works as part of a technical process of use

(1) Subject to subsection (2), the copyright in a work is not infringed by the making of a reproduction of the work if the reproduction is incidentally made as part of a technical process of using a copy of the work.

(2) Subsection (1) does not apply to the making of a reproduction of a work if the reproduction is made from an infringing copy of the work.

189 After section 111A
Insert:

111B Reproduction of subject-matter as part of a technical process of use

(1) Subject to subsection (2), the copyright in a subject-matter is not infringed by the making of a reproduction of the subject-matter if the reproduction is incidentally made as part of a technical process of using a copy of the subject-matter.

(2) Subsection (1) does not apply to the making of a reproduction of a work if the reproduction is made from an infringing copy of the work.

So it seems like that recommendation has already been taken care of. And it seems to answer Kim’s concerns from April:

This suggests (although, as I say, it’s not entirely clear) that we can’t have a general exception for temporary copies.

On the other hand, material form gets extended to cover any copy of the work, even one you can’t make further reproductions from. Thus you’re forced to rely on the incidental exception outlined above if you want to do anything with a work at all. That’s actually a pretty major change, though I happen to think a good one — an exception that allows you to argue that a use is incidental is much more flexible and powerful than requiring you to argue that further reproduction can’t be made — which is merely a technical issue that can usually be overcome.

Another concern is those (2) clauses: if you cache a pirated work, or even just play a pirated work on a computer, you’re infringing copyright. We’ll have to see whether this is any more concerning that the existing problem of infringing copyright by taping shows from TV.

One question that arises is how the term incidental will actually be interpreted. It’s not defined, and there are a couple of alternative meanings that would result in different outcomes:

incidental
     adj 1: [...] minor or casual or subordinate
            in significance or nature or occurring as a chance
            concomitant or consequence; [...]
     2: following as a consequence; [...]
     3: not of prime or central importance; "nonessential to the
        integral meanings of poetry" [syn: {nonessential}]

Meaning (2) is useful — the task is playing your CD on your iPod; the technical details of how you do that are minor and subordinate in significance, and thus incidental. Meaning (3) is entirely useless on the other hand: if you’re only allowing unnecessary copies to be made, what’s the point? If I want to play a CD on my iPod, the copies are necessary, so therefore I can’t make them. Meaning (1) is difficult to make use of: is the copying minor because people playing the song don’t really want to care about the technical details, or is it major because without the technical details it wouldn’t be possible?

Going with meaning (2), this seems like it could be said to allow compilation tapes (“I’d like to play these twenty songs on my hour long trip, but they’re all on different CDs and I can’t be fumbling in the car, so I’ll make incidental copies of them on a new CD”), and time-shifting (“I’m trying to watch this show, but the only way I can is if I make an incidental copy on this tape, then replay it later when I’m actually home in front of the TV”).

So it basically seems that if you interpret “incidental” as meaning “more about letting you use or access the work than giving you two copies of the work that you can use independently” — which seems quite reasonable to me — this seems like a fairly limited, but quite useful, form of fair use in and of itself.

(It isn’t fair use though, because fair use probably lets you give your compilation CD to a friend even though that’s technically “piracy”. Not to mention “fair use” means that you’ve got a defense if you forward an email to someone whom the author of that email didn’t want you to forward it to. Err, except I just did mention that. My bad.)

I’m not a lawyer, this isn’t legal advice. Heck, this isn’t even the law yet.