Where does Roxon stand on copyright?

analysis New Attorney-General Nicola Roxon has yet to be tested in her new role in the dangerous territory of copyright enforcement, but there are clues as to where she may stand.

Nicola Roxon
(Credit: Renai Lemay/Delimiter)

Aside from the communications minister, the role of attorney-general is the most important role in government for IT. In his time as attorney-general, Robert McClelland oversaw data-retention discussions and copyright-infringement discussions with internet service providers (ISPs), and he also oversaw the implementation of legislation dealing with cybercrime.

Having only been in the role for over a month, it's not surprising that all's been quiet on the copyright front for Roxon so far. No doubt the closed-door discussions will continue with the ISPs and copyright holders, but it's unlikely that we'll hear anything from her until the High Court judgment on the AFACT vs. iiNet case is handed down, or we hear something back from the case between Optus and the sporting codes over its live TV-recording app TV Now.

Looking back through Roxon's parliamentary career, she has only spoken on the issue of copyright in parliament just six times.

Her most enlightening speech was in 2004, regarding amendments to the Copyright Act as part of the US free trade agreement. As shadow attorney-general, Roxon spoke against parts of the legislation that seemed to be much tougher on ISPs than even the US's laws were.

"In terms of the substance of the changes, ISPs, the Australian Digital Alliance and indeed the Labor Party are greatly concerned that these amendments will significantly expand the rights to demand the removal of material from the internet beyond copyright holders and exclusive licensees to others," Roxon said.

"We have concerns that the Bill has the potential to enable persons other than copyright owners or exclusive licensees to force an internet service provider to take down allegedly infringing copyright material from their system. This is no mild worry. The practice of computer-generated mass take-down notices being issued in the US, without any real person making an assessment of the material, and potentially with no copyright interest involved, could, if the practice developed here with this new regime in place, put a heavy burden on our ISPs, and therefore their customers, presumably through passing on any costs and perhaps with no resulting benefit to copyright owners."

In words that were echoed by iiNet in its case against AFACT as to why it shouldn't act on infringement notices, Roxon said that the Bill put a lot of responsibility on ISPs to without much evidence act on the suspicion that sites hosted by the ISP contained infringing content.

"In particular, the insertion of items 11 and 13 into the Bill has placed an obligation on the ISPs ... to expeditiously take down material if they are 'aware of facts or circumstances that make it apparent that the material is likely to be infringing'. ISPs and the Australian Digital Alliance have expressed grave concerns that this threshold test for the requisite knowledge is far too low, or at least not adequately defined by the Act, and would require them to take down a lot of material without much substance being required to the request that has been made.

"[W]e are also concerned that this could place a very heavy onus on the ISP to make an assessment of the validity of each and every claim that internet material is infringing each and every time they receive some sort of notification that they are hosting infringing material. That is regardless of whether: (a) the actual copyright owner or exclusive licensee has requested the take down of the material or not; and (b) the notification on face value appears frivolous or is from some dubious source. They will still be worried that they need to take action to maintain their protection under the safe-harbour provisions."

At the time, she also raised concerns about the rights and processes for those accused of putting up infringing material.

In 2006, Roxon again spoke when the then-Howard Government was moving more amendments to the Copyright Act to attempt to make the legislation more technology neutral, and allow for the inclusion of time-shift recording for TV and radio broadcasts. These comments carry particular weight for the Optus TV Now case, as it was these provisions that Optus has relied upon. Roxon had the foresight to question why the legislation did not reflect how people use personal devices, and the impact that it has on copyright.

"A number of the provisions do not seem to reflect the reality of how people access and use legitimately purchased copyright materials. One startling example of this is that a sound recording copied for use on an iPod or MP3 player is limited to a person's private and domestic use. We have been advised that it is intentional, as some of the stakeholders have queried, to limit that use to inside one's home. I cannot see the point of a funky, portable new technology, which is being taken up in the thousands by consumers, if it cannot be used outside the home."

In Optus' court battle with the sporting codes over its TV Now, counsel for the NRL sought to argue that Optus was shifting the "time more convenient" provision in the Copyright Act that allows for TV recording for personal use, to allow them to watch it at a place more convenient, for example, on a boat in Sydney Harbour. Justice Steven Rares questioned why a person should not be allowed to view the recorded content on different devices where and when they wanted, for personal use.

In 2006, Roxon argued that the amendments didn't reflect that people make multiple copies of their content to use on multiple personal devices.

"If you delete something from your MP3 player, some systems will automatically delete it from the computer when you re-sync it. So, obviously that is a problem that needs to be dealt with," she said.

While she praised the introduction of time-shifting provisions, she said that more needed to be done to address emerging technologies.

"It would be a shame, though, if this opportunity to implement a whole new raft of measures, through a failure to understand new or emerging technology, again outlawed consumers' everyday use of technology and captured those purchasing or wanting to use legitimate material," she said.

"As we know, if the laws are out of touch with personal practice, then they do end up being treated with contempt, and they do not encourage the purchase of legitimate materials and their lawful use — something that I know both the government and the opposition are keen to make sure that these laws will do."

One thing is certain; regardless of the outcomes of the iiNet and the Optus cases, there will be copyright reform coming in the near future, and Roxon will be charged with developing the legislation to bring about those changes.

As with all of these things, what politicians say in opposition and then do in government can almost be polar opposites — just look at Labor's move to offshore processing for asylum seekers — but if these speeches are anything to go on, she's definitely not starting the role empty handed.