Online Copyright Infringement Discussion Paper July 2014

The Paper, by consideration of the issue of authorisation, addresses a very practical development in commerce. Online copyright infringement is now not only about unauthorised uses of cinematograph films but has filtered down to become more prevalent amongst small to medium enterprises (SME), as some competitors embrace online trading by aggressively and often unlawfully, seeking market share. It is understandable that internet service providers (ISPs), as gatekeepers of internet traffic, may be considered as being more than a conduit of contravening conduct but not a joint tortfeasor involved in a common design. In between those extremes lies the concept of authorisation in copyright which has a long history in Australia since the Copyright Act 1905 (Cth). The text of s 101(1A) of the Copyright Act, in particular s 101(1A)(a) and (c), derived from statements of Gibbs J in Moorhouse.

Infringement notices: stimulus for prevention or trivialising offences?

In the OHS field increasing use is being made of administrative penalties to enforce OHS legislation. Infringement notices (also known as penalty notices or on-the-spot fines) are used in several Australian jurisdictions and there are plans to introduce them in others. Overseas jurisdictions with some form of OHS administrative penalty include the United States, some Canadian provinces, and the system recently enacted in New Zealand. This article reviews empirical evidence and legal arguments about the use of infringement notices for enforcing OHS legislation. Key factors influencing the impact of these notices are discussed, including the monetary amounts of penalties, the nature of offences, the criteria and processes for issuing notices, and other implementation issues. There is a need for further empirical studies to determine the characteristics of infringement notice schemes that are most effective in motivating preventive action.

Submission to the Australian Government’s Online Copyright Infringement Discussion Paper

Now is not the time to increase the strength of copyright law. Copyright law is facing a crisis of legitimacy: consumers increasingly appear to doubt its moral weight. To a large extent, this can be traced to the fact that Australian consumers do not believe they are being treated fairly by (predominantly US-based) copyright producers and distributors. Compared to their overseas peers, Australian consumers pay much more for access to books, films, television, and computer games, and are often subjected to long delays before material is available in Australia. Our research shows that this perceived unfairness increases the willingness of Australian consumers to seek out alternative distribution channels. Put simply, the failure of content distributors to meet consumer demand in Australia is a leading factor in copyright infringement. This submission argues that the best strategy to reduce copyright infringement in Australia, at the present time, is for distributors to focus on providing timely, affordable, convenient and fair access to copyright goods. Until this is done, the prevalence of copyright infringement in Australia should be seen as essentially a market problem, rather than a legal one. The Australian Government, meanwhile, should address the recommendations of the IT Pricing Report as a matter a priority. As a first step, the Government should urgently consider repealing the IP exception to competition law in s 51(3), as recommended by the Ergas committee, the IT Pricing report, and the ALRC. This change alone may go a long way to enhancing the efficiency of the copyright market in Australia.

Creative Commons Australia and Organization for Transformative Works submission to the Australian Government’s online copyright infringement discussion paper

This submission focuses on the adverse effects that the Government’s proposals are likely to have on the legitimate use of copyright works. Copyright exists to support the production of new expression. Because new expression always builds on existing culture, any extension of copyright protection necessarily also increases the costs of creative expression. As a threshold matter, we do not believe that these further increases to the force of copyright law are justified. In recent years, the balance at the heart of copyright law has tipped too far in the direction of established producers and distributors, and now imposes unnecessary costs on ordinary creators. The available evidence does not support a further increase in the penalties and enforcement mechanisms available under copyright law.

Submission to Senate Standing Committee on Legal and Constitutional Affairs on the Copyright Amendment (Online Infringement) Bill 2015

We argue that safeguards are necessary to ensure human rights are adequately protected. All systems of blocking access to online content necessarily raise difficult and problematic issues of infringement of freedom of speech and access to information. Given the importance of access to information across the breadth of modern life, great care must be taken to ensure that any measures designed to protect copyright by blocking access to online locations are proportionate. Any measures to block access to online content must be carefully tailored to avoid serious and disproportionate impact on human rights. This means first that the measures must be effective and adapted to achieve a legitimate purpose. The experience of foreign jurisdictions suggests that this legislation is unlikely to be effective. Unless and until there is clear evidence that the proposed scheme is likely to increase effective returns to Australian creators, this legislation should not be introduced. Second, the principle of proportionality requires ensuring that the proposed legislation does not unnecessarily burden legitimate speech or access to information. As currently worded, the draft legislation may result in online locations being blocked even though they would, if operated in Australia, not contravene Australian law. This is unacceptable, and if introduced, the law should be drafted so that it is clearly limited only to foreign locations where there is clear and compelling evidence that the location would authorise copyright infringement if it were in Australia. Third, proportionality requires that measures are reasonable and strike an appropriate balance between competing interests. This draft legislation provides few safeguards for the public interest or the interests of private actors who would access legitimate information. New safeguards should be introduced to ensure that the public interest is well represented at both the stage of the primary application and at any applications to rescind or vary injunctions. We recommend that: The legislation not be introduced unless and until there is compelling evidence that it will have a real and significant positive impact on the effective incomes of Australian creators. The ‘facilitates an infringement’ test in s 115A(1)(b) should be replaced with ‘authorises infringement’. The ‘primary purpose’ test in s 115A(1)(c) should be replaced with: “the online location has no substantial non-infringing uses”. An explicit role for public interest groups as amici curiae should be introduced. Costs of successful applications should be borne by applicants. Injunctions should be valid only for renewable two year terms. Section 115A(5) should be clarified, and cl (b) and (c) be removed. The effectiveness of the scheme should be evaluated in two years.

A Submission to the Senate Legal and Constitutional Affairs Committee on the Copyright Amendment (Online Infringement) Bill 2015 (Cth)

The film company, Roadshow, the pay television company Foxtel, and Rupert Murdoch’s News Corp and News Limited — as well as copyright industries — have been clamouring for new copyright powers and remedies. In the summer break, the Coalition Government has responded to such entreaties from its industry supporters and donors, with a new package of copyright laws and policies. There has been significant debate over the proposals between the odd couple of Attorney-General George Brandis and the Minister for Communications, Malcolm Turnbull. There has been deep, philosophical differences between the two Ministers over the copyright agenda. The Attorney-General George Brandis has supported a model of copyright maximalism, with strong rights and remedies for the copyright empires in film, television, and publishing. He has shown little empathy for the information technology companies of the digital economy. The Attorney-General has been impatient to press ahead with a copyright regime. The Minister for Communications, Malcolm Turnbull, has been somewhat more circumspect,recognising that there is a need to ensure that copyright laws do not adversely impact upon competition in the digital economy. The final proposal is a somewhat awkward compromise between the discipline-and-punish regime preferred by Brandis, and the responsive regulation model favoured by Turnbull. In his new book, Information Doesn’t Want to Be Free: Laws for the Internet Age, Cory Doctorow has some sage advice for copyright owners: Things that don’t make money: * Complaining about piracy. * Calling your customers thieves. * Treating your customers like thieves. In this context, the push by copyright owners and the Coalition Government to have a copyright crackdown may well be counter-productive to their interests. This submission considers a number of key elements of the Coalition Government’s Copyright Crackdown. Part 1 examines the proposals in respect of the Copyright Amendment (Online Infringement) Bill 2015 (Cth). Part 2 focuses upon the proposed Copyright Code. Part 3 considers the question of safe harbours for intermediaries. Part 4 examines the question of copyright exceptions – particularly looking at the proposal of the Australian Law Reform Commission for the introduction of a defence of fair use. Part 5 highlights the recommendations of the IT Pricing Inquiry and the Harper Competition Policy Review in respect of copyright law, consumer rights, and competition law.

Moments of flux in intermediary liability for copyright infringement

This chapter provides an overview of a recent shift in regulatory strategies to address copyright infringement toward enlisting the assistance of general purpose Internet Service Providers. In Australia, the High Court held in 2012 that iiNet, a general purpose ISP, had no legal duty to police what its subscribers did with their internet connections. We provide an overview of three recent developments in Australian copyright law since that decision that demonstrate an emerging shift in the way that obligations are imposed on ISPs to govern the actions of their users without relying on secondary liability. The first is a new privately negotiated industry code that introduces a 'graduated response' system that requires ISPs to pass on warnings to subscribers who receive allegations of infringement. The second involves a recent series of Federal Court cases where rightsholders made a partially successful application to require ISPs to hand over the identifying details of subscribers whose households are alleged to have infringed copyright. The third is a new legislative scheme that will require ISPs to block access to foreign websites that 'facilitate' infringement. We argue that these shifts represent a greater sophistication in approaches to enrolling general purpose intermediaries in the regulatory project. We also suggest that these shifts represent a potentially disturbing trend towards enforcement of copyright law in a way that does not provide strong safeguards for the legitimate constitutional due process interests of users. We conclude with a call for greater attention and research to better understand how intermediaries make decisions when governing the conduct of users, how those decisions may be influenced by both state and non-state actors, and how the rights of individuals to due process can be adequately protected.

The Innocent Pleasure : A Study on Luther's theology of music

The aim of the study is to examine Luther s theology of music from the standpoint of pleasure. The theological assessment of musical pleasure is related to two further questions: the role of emotions in Christianity and the apprehension of beauty. The medieval discussion of these themes is portrayed in the background chapter. Significant traits were: the suspicion felt towards sensuous gratification in music, music as a mathematical discipline, the medieval theory of emotions informed by Stoic apatheia and Platonic-Aristotelian metriopatheia, the notion of beauty as an attribute of God, medieval aesthetics as the aesthetic of proportion and the aesthetic of light and the emergence of the Aristotelian view of science that is based on experience rather than speculation. The treatment of Luther s theology of music is initiated with the notion of gift. Luther says that music is the excellent (or even the best) gift of God. This has sometimes been understood as a mere music-lover s enthusiasm. Luther is, however, not likely to use the word gift loosely. His theology can be depicted as a theology of gift. The Triune God is categorically giving. The notion of gift also includes reciprocity. When we receive the gifts of God, it evokes praise in us. Praising God is predominantly a musical phenomenon. The particular benefit of music in Luther s thought is that it can move human emotions. This emphasis is connected to the overall affectivity of Luther s theology. In contrast to the medieval discussion, Luther ascribes to saints not just emotions but particularly warm and tender affections. The power of music is related to the auditory and vocal character of the Word. Faith comes through hearing the Word that is at once musical and affective perception. Faith is not a mere opinion but the affective trust of the heart. Music can touch the human heart and persuade with its sweetness, like the good news of the Gospel. Music allows us to perceive Luther s theology as a theology of joy and pleasure. Joy is for Luther a gift of the Holy Spirit that fills the heart and bursts out in voice and gestures. Pleasure appears to be a central aspect to Luther s theology. The problem of the Bondage of the Will is precisely the human inability to feel pleasure in God s will. To be pleased in the visible and tangible creation is not something a Christian should avoid. On the contrary, if one is not pleased with the world that God has created, it is a sign of unbelief and ingratitude. The pleasure of music is aesthetic perception. This in turn necessitates the investigation of Luther s aesthetics. Aesthetic evaluation is not just a part of Luther s thought. Eventually his theology as a whole could be portrayed in aesthetic terms. Luther s extremely positive appreciation of music illutrates his theology as an affective acknowledgement of the goodness of the Creation and faith as an aesthetic contentment.

The Design and Synthesis of Transition Metal Complexes Supported by Non-innocent Ligand Scaffolds for Small Molecule Activation

This dissertation focuses on the incorporation of non-innocent or multifunctional moieties into different ligand scaffolds to support one or multiple metal centers in close proximity. Chapter 2 focuses on the initial efforts to synthesize hetero- or homometallic tri- or dinuclear metal carbonyl complexes supported by para-terphenyl diphosphine ligands. A series of [M₂M’(CO)₄]-type clusters (M = Ni, Pd; M’ = Fe, Co) could be accessed and used to relate the metal composition to the properties of the complexes. During these studies it was also found that non-innocent behavior was observed in dinuclear Fe complexes that result from changes in oxidation state of the cluster. These studies led to efforts to rationally incorporate central arene moieties capable managing both protons and electrons during small molecule activation.

Chapter 3 discusses the synthesis of metal complexes supported by a novel para-terphenyl diphosphine ligand containing a non-innocent 1,4-hydroquinone moiety as the central arene. A Pd⁰-hydroquinone complex was found to mediate the activation of a variety of small molecules to form the corresponding Pd⁰-quinone complexes in a formal two proton ⁄ two electron transformation. Mechanistic investigations of dioxygen activation revealed a metal-first activation process followed by subsequent proton and electron transfer from the ligand. These studies revealed the capacity of the central arene substituent to serve as a reservoir for a formal equivalent of dihydrogen, although the stability of the M-quinone compounds prevented access to the PdII-quinone oxidation state, thus hindering of small molecule transformations requiring more than two electrons per equivalent of metal complex.

Chapter 4 discusses the synthesis of metal complexes supported by a ligand containing a 3,5-substituted pyridine moiety as the linker separating the phenylene phosphine donors. Nickel and palladium complexes supported by this ligand were found to tolerate a wide variety of pyridine nitrogen-coordinated electrophiles which were found to alter central pyridine electronics, and therefore metal-pyridine π-system interactions, substantially. Furthermore, nickel complexes supported by this ligand were found to activate H-B and H-Si bonds and formally hydroborate and hydrosilylate the central pyridine ring. These systems highlight the potential use of pyridine π-system-coordinated metal complexes to reversibly store reducing equivalents within the ligand framework in a manner akin to the previously discussed 1,4-hydroquinone diphosphine ligand scaffold.

Chapter 5 departs from the phosphine-based chemistry and instead focuses on the incorporation of hydrogen bonding networks into the secondary coordination sphere of [Fe₄(μ₄-O)]-type clusters supported by various pyrazolate ligands. The aim of this project is to stabilize reactive oxygenic species, such as oxos, to study their spectroscopy and reactivity in the context of complicated multimetallic clusters. Herein is reported this synthesis and electrochemical and Mössbauer characterization of a series of chloride clusters have been synthesized using parent pyrazolate and a 3-aminophenyl substituted pyrazolate ligand. Efforts to rationally access hydroxo and oxo clusters from these chloride precursors represents ongoing work that will continue in the group.

Appendix A discusses attempts to access [Fe₃Ni]-type clusters as models of the enzymatic active site of [NiFe] carbon monoxide dehydrogenase. Efforts to construct tetranuclear clusters with an interstitial sulfide proved unsuccessful, although a (μ₃-S) ligand could be installed through non-oxidative routes into triiron clusters. While [Fe₃Ni(μ₄-O)]-type clusters could be assembled, accessing an open heterobimetallic edge site proved challenging, thus prohibiting efforts to study chemical transformations, such as hydroxide attack onto carbon monoxide or carbon dioxide coordination, relevant to the native enzyme. Appendix B discusses the attempts to synthesize models of the full H-cluster of [FeFe]-hydrogenase using a bioinorganic approach. A synthetic peptide containing three cysteine donors was successfully synthesized and found to chelate a preformed synthetic [Fe₄S₄] cluster. However, efforts to incorporate the diiron subsite model complex proved challenging as the planned thioester exchange reaction was found to non-selectively acetylate the peptide backbone, thus preventing the construction of the full six-iron cluster.

John Innocent: A story of mission work in North China, by G.T. Candlin.

http://www.archive.org/details/johninnocent00canduoft