Law in Australia is like a mirage in the desert. A caravan of legislative drafters and government copyright lawyers arrive at the oasis of sunshine a light only to find that the water has moved again to the distant horizon.
Last week’s case which revealed a loophole enabling the bootlegging of live-to-air performances of major pop stars was but a small sample of a quarter of a century of legislation being unable to catch up with technology. Moreover, when its belated attempts finally hit the statute book, the result has invariably been a miasma of detail through which lawyers can wade to find unintended loopholes. And thus a small Adelaide company is able to produce CDs of live performances of overseas stars without paying royalties or a fair return to the artists.
This loophole can probably be closed quite quickly, especially as major recording studios (with their legal and financial clout) are involved. However, a more serious piece of oasis movement is about to happen.
In July last year the Copyright Agency Limited and the Government announced with great satisfaction that they had made a copyright agreement. They had arrived at the oasis and the thirsty camels were about partake of the water and camel owners were to feast upon the dates. Broadly, the agreement provided that the Government would pay for the copying of copyright works done by its departments.
The 1992 agreement was a belated recognition of photocopying technology. The 1968 Act provided that Government departments could copy what they liked, but they must provide copyright owners with information about what they had copied and either come to an agreement about payment of pay a rate struck by the Copyright Tribunal. By the time photocopying came on the scene the provision was one of the most naive sections of any Commonwealth Act of Parliament. With photocopiers whizzing and zooming in every department, how could such a provision be policed?
Basically, before the 1992 agreement, it was not policed. Those with clout could force the issue; smaller beings had no hope. If a department copied so much as a dinosaur’s toenail or the curl of a C in the Coca-Cola sign, the big corporations flanked by lawyers would be on the doorstep. However, if an article of the Coonabarabran Bugle were copied departments could act with practical impunity.
Then along came the Copyright Agency Limited with its collective clout. The Government negotiated and signed the 1992 agreement. It will pay several million dollars a year which CAL will distribute to copyright holders. How will CAL know to whom it should give the money? Initially, some departments were sending it slips of paper detailing every copying. It was a fiasco. CAL was inundated with paper. It is now working out a more sensible sampling technique. It will take samples of material copied and pay authors according to how often their work appears in the sample.
Sampling has proven very efficient and fair in distributing money for copying done by educational institutions.
The essential point is that with the onslaught of newer photocopying technology individual authors could not hope to police their own copyright against the hordes of photocopying public servants. A sensible administrative scheme was necessary. And that has now largely been put in place. But Nirvana has not arrived. ‘Tis a mirage. The oasis is about to be moved further into the desert.
With huge pressure on budgets, line managers are looking at paper and storage costs and the costs of having people walk about offices delivering paper. Electronic transfer looks inviting. Scanning technology is improving, both in graphic and text form. So material from books, journals and newspapers will be copied only one, electronically. Departmental users will access it through their computers, and the 1992 agreement will be nought.
Copyright law has so often failed to keep up with technology. Changes in the law came long after the technology changed the face of the dissemination of intellectual property (music, writings, graphics and so on). First it was the public-address system, followed by juke-boxes, tape-recorders, photocopiers, the DOS copy command, VCRs, digital tapes and scanning. There will be more.
Each time the legislators will attempt to come up with a prescriptive solution involving manic detail. The present Act runs to 228 pages and has, for example, a Section 135ZZS(3)(b)(ii).
There has got to be a better way.