All posts by kylie

I am an Australian lawyer and a PhD Candidate in the School of Law at Queensland University of Technology. I am co-founder and coordinator of the QUT/QPILCH Intellectual Property and Technology Law Clinic. My research focuses on the intersection between copyright and digital technologies. I have been actively involved in the open access movement in Australia, as a key researcher on the Open Access to Knowledge (OAK) Law Project.

Some updates

So I have fallen a bit behind in my promised extended discussion of the iiNet case. I’m halfway through the full judgment, but have unfortunately been sidetracked with some other work-related tasks.

There has been no shortage of interesting copyright judgments in the last week. In addition to the iiNet decision, there has been the decision of Larrikin Music Publishing Pty Ltd v EMI Songs Australia Pty Limited [2010] FCA 29 (where the band Men At Work was found to have infringed Larrikin’s copyright in the children’s song ‘Kookaburra Sits in the Old Gum Tree’, by using the flute riff in their famous ‘Down Under’ song), and on Monday, in Telstra Corporation Limited v Phone Directories Company Pty Ltd [2010] FCA 44, a single judge of the Federal Court held that copyright does not subsist in Telstra’s Yellow Pages and White Pages directories (choosing to follow IceTV rather than Desktop Marketing).

These are all important decisions, and I have every intention of getting to them (for reading and blogging in detail) as soon as I can. In the meantime, if you are interested in reading some updates and discussions, I’d recommend viewing Nic Suzor’s blog on the iiNet decision (1, 2, and 3) and Warwick Rothnie’s post on the Telstra decision.

EFA submission on minimum legitimacy requirements for mandatory internet filering

The Electronic Frontiers Australia (EFA) submission to the Australian Government Department of Broadband, Communications and the Digital Economy (DBCDE) on what measures would be needed to make mandatory online filtering legitimate, particularly from a transparency perspective, is now available online. You can view a summary or download the submission in PDF from the EFA website.

I am happy to say that I played a small role (together with Nic Suzor and Irene Graham) in putting this submission together. I hope that it will have some impact in helping to make the proposed filter (if it is indeed implemented) more transparent, and as a result, the government more accountable to the Australian people as far as internet filtering goes.

iiNet prevails in Federal Court

Justice Cowdroy of the Federal Court today handed down his judgement in the Roadshow Films Pty Ltd v iiNet case.

The case involved a number of film studios who had sued iiNet, an internet service provider, for authorising the copyright infringement of its users. Their argument was that some of iiNet’s users were infringing copyright by downloading movies and TV shows via a BitTorrent service; that iiNet knew this was going on; and that iiNet failed to do anything about it. The question for the court was whether iiNet was authorising the copyright infringement of its users by failing to take any steps to stop the infringing conduct.
In a decision that has been celebrated all over the internet this morning (especially Twitter), Justice Cowdroy held that iiNet was not authorising copyright infringement. The Justice gave three reasons his decision:
  1. the infringements occurred as a result of use of the BitTorrent system, not the internet, and iiNet did not control the BitTorrent system;
  2. iiNet did not have a relevant power to prevent the infringements occurring; and
  3. iiNet did not sanction, approve or countenance copyright infringement.
In the summary of his judgement (which I have had the good fortune of reading), Justice Cowdroy made the following important statement: “I find that the mere provision of access to the internet is not the ‘means’ of infringement”.
The judge found that a scheme for notification, suspension and termination of customer accounts is not a relevant power to prevent copyright infringement pursuant to s 101(1A)(a) of the Copyright Act. The judge’s reasons for this finding are set out in the main judgement, which I have not yet had a chance to read. I hope to do this later today and provide updated comments shortly.
Justice Cowdroy also found that iiNet did have a repeat infringer policy that was reasonably implemented and that iiNet would therefore have been entitled to take advantage of the safe harbour provisions of the Copyright Act. However, because the judge found that iiNet did not authorise infringement, iiNet did not need to rely on the safe harbours.
Nic Suzor, Associate Lecturer in the Faculty of Law at QUT and Chair of Electronic Frontiers Australia has further comments and analysis here and here.
I think this is a fantastic result and I am happy that common sense has triumphed.
The main judgement is available here. It is almost 200 pages. Happy reading!
(Updates will follow once I have read the full document myself)

Government 2.0 Taskforce report(s)

This post is hugely late, but I’ve only just realised that I never actually posted notice of the Government 2.0 Taskforce final report, or the project report that I did with Professor Anne Fitzgerald for the Government 2.0 Taskforce.

So, without further ado, here are the relevant links:

The final report of the Government 2.0 Taskforce, entitled, “Engage: Getting on with Government 2.0” (December 2009) is available here. The report makes a number of important recommendations, including:

Recommendation 6: Make public sector information open, accessible and reusable

6.1 By default Public Sector Information19 (PSI) should be:

  • free
  • based on open standards
  • easily discoverable
  • understandable
  • machine-readable
  • freely reusable and transformable.

6.2 PSI should be released as early as practicable and regularly updated to ensure its currency is maintained.

6.3 Consistent with the need for free and open re-use and adaptation, PSI released should be licensed under the Creative Commons BY standard as the default…

The Government 2.0 Taskforce commissioned a number of projects to assist them with examining various areas of policy relating to their government 2.0 agenda. I assisted Professor Anne Fitzgerald with Project 4: Copyright Law and Intellectual Property. Our project report is available here. Here is the summart of the project report, as provided on the Government 2.0 Taskforce website:

Professor Anne Fitzgerald examined the broad policy rationale for copyright in relation to public sector information and found that there is a strong case to realign Commonwealth copyright policy based on the principles of open access and re-use which would facilitate complex flows of information between and within the public and private sectors. The report stated that this could be achieved without the need for significant changes to copyright legislation by repositioning crown copyright to enable rather than restrict re-use; adopting copyright management practices appropriate to the Web 2.0 environment (e.g. standardised open licenses which provide clear statements of users’ permissions); and providing clearer guidance to agencies about the use of open licenses, and the meaning of ‘publication’ in the Copyright Act.

Conroy’s Con – the new grass-roots campaign against the Government’s mandatory internet filter

On Monday 21 December 2009, I attended the Brisbane Stop Internet Censorship Public Meeting. The meeting was organised by Nicholas Perkins and had a fantastic turnout – close to 90 people! There is clearly a lot of interest around this issue.

The meeting was focused on what we can do to get the message out about Conroy’s mandatory filter and the negative impacts it will have. Mainly, that the filter will NOT stop child pornography or protect children from the dangers that lurk online (including online predators and cyber bullying) but it DOES pose a serious risk of political censorship.

It was generally agreed that at present, we are losing the great internet filter battle. Conroy has used strong rhetoric that casts anyone who opposes the filter into the role of child pornographer (or at least, supporter of child pornography). Further, we are not aided by our own “geekiness” – as tech-savvy Twitteratti, we do not appeal to mainstream Australia who may not know what a “feed” is, let alone the significance of the “clean feed” proposal.

So what can we do?

The answer is a lot. But we need to do it fast, and we need to apply a lot of pressure consistently. We need to reach both the pollies and the general Australian public, and we need to turn this debate around soon or the battle is lost for good.

The Stop Internet Censorship meeting had two speakers, each of whom presented compelling options for moving forward. Each speaker took a completely different approach, but I believe that both approaches can be effective and if we apply them together, even more so.

Nicolas Suzor from Electronic Frontiers Australia spoke first and outlined the importance of keeping this debate rational. He argued that we shouldn’t get sidetracked on issues of speed. The most important issues relate to censorship and control, and the fact that the RC list has a far wider ambit than child porn. Nic stated that the most effective thing we can do in terms of reaching the politicians is letter-writing. Many MPs do not really have a clear idea of what this debate is about. We should inform them and make our case. Write, write write! EFA has provided a template on their website, if you are not sure what to write.

Nic also highlighted the Great Australian Internet Blackout, an online protest that runs from 25th – 29th January, in which you can blackout your online profile picture and/or website to protest against the filter. Additionally, Michael Meloni of Somebody Think of the Children has developed a website called The Gift of Censorship, which allows you to leave a short (500 characters or less) message for Stephen Conroy. For every 1000 messages sent, Michael will send a Christmas stocking of coal to the Senator.

Finally, Australia Day is the national day of action for this debate. EFA are asking you to spread the word about what the filter really means for Australians, by bringing it up at your Australia Day Party.

The next speaker was Cameron Reilly, who spoke about the propaganda techniques that Conroy has used to swing the debate his way. Sometimes, you need to fight fire with fire, and in addition to the more reasoned approaches above, we may need to develop our own propaganda techniques. We need to bring this issue to the masses.

Andrew Bartlett suggested “Conroy’s Con” as our slogan. More meetings will follow to discuss what techniques we can employ to show mainstream Australia that this filter is not what Conroy promises. Importantly, we need Mums and Dads, family groups and church groups on our side.

To find out more about the next meeting, visit http://www.stopinternetcensorship.org/
Videos of the December meeting have been posted on YouTube.
You can see Nicholas Perkins speaking here
Nic Suzor is here
Cameron Reilly is here and here
and the public debate is here, here and here
You can also see the Twitter feed from the night by searching for #sicbne

I think my blogging is over for the day… #bbfqld


We are engaging in general discussion now in Brisbane, which probably means it is easier to follow this via Twitter, rather than me trying to follow it all.


So, I guess this is where I sign off.



Phew! It’s all over! Live blogging is exhausting – not to mention trying to keep track of the twitter feeds, the Google Wave discussions and all the other activity going on! There has been a hive of activity here in Brisbane and I can only imagine the same (or more) has occurred in Sydney.



I think the Brisbane forum has been very successful and thank you to everyone who attended, whether in person or online. I’d also like to extend thanks to the wonderful speakers on the program today, Prof Anne Fitzgerald and Paul O’Keeffe for organising the forum, Pia Waugh, Senator Kate Lundy and our friends at the main forum in Sydney, other members of our research team – Elliott Bledsoe, Jessica Coates, Cheryl Foong and Jimmy Ti – for helping with taking notes, making tweets and taking photos, and finally Patrice Meixsell-Draper and the QUT AV services and technical services teams for assisting with the venue, wireless connectivity and audio recording of today’s events.

Brisbane forum #bbfqld – Stream 5: e-Community


The final stream (Stream 5 – e-Community) was facilitated by Fee Plumley of the Australia Council for the Arts.



Fee described the Geeks in Residence program that the Australia Council is running – putting “geeks” within arts organisations to help them with their digital agenda.



The Geeks in Residence program is interested in three things:

  1. What innovation can take place around artistic programming?
  2. Audience development (marketing through digital – but this needs to be done strategically – must build community of users within the organisation) – need cultural change within the organisation – staff are taught to use networking in a productive way
  3. General operations – something often overlooked in terms of how technologies can improve productivity



Fee also made the point very well that it is important to have clear and sensible policy around use of social networking in the workplace. You must let your staff engage with and network with their communities online. Talking about their work with passion to others is just as important as the actual work. Passion spreads the message further.



Discussion then turned (very strongly) to copyright. Fee made the following arguments:



The first thing we must do, alongside the NBN, is to re-examine the copyright system. All we have currently is blockades, because the old organisations are just working to preserve old industry and old business models. This may rock the boat – but the boat needs to be rocked.



We need to get Creative Commons, APRA, MEAA, whoever, to work together – to try a number of case studies of business and copyright models with difference content and different audiences – to see what happens. Sick of hearing “it can’t be done” and closed doors – let’s do it as an experiment! If at the end, the best answer is to shut down the process and fiercely protect the copyright, then “I will shut up”. We need to let new business models develop. We must demand that even though we are small and niche (“the arts”), we have an important part within the economic system. We need knowledge investment. We must question why we accept models from the past.



Other debate –



Fee Plumley: Artists need to stop feeling bad about asking for money. The subsidising system makes artists feel like beggars.



Elliott Bledsoe: Similarly, artists need to stop expecting other people (intermediaries) to ask for money for them.



Fee Plumley: There must be a balance across the whole space. We don’t just want commercially-driven art

Brisbane Forum #bbfqld – Stream 4: e-Business

In the e-Business stream we had an overview of the Peer to Patent Australia Project from Professor Brian Fitzgerald. I’ll let you see my earlier (more extensive post) for information about this project and I’d also encourage you to visit the website.

There was also some general discussion around some e-business issues, all of which were well covered via the twitter stream (#bbfqld) – so again, I will let you read the tweets there.

Brisbane Forum #bbfqld – Stream 3: Digital Education

Stream 3 was on digital education.


First up was Linda Pitt, Manager, Discovery Programs, eLearning, QLD Department of Education and Training. Linda gave an overview of The Learning Place. I encourage you to check it out – they are doing some fantastic things.



The Learning Places works on the theory that a robust digital education infrastructure involves three limbs – digital pedagogies, digital content, and e-learning spaces. It is trying to give students a ‘real-world’ experience through online networks. It is encourage use of digital spaces (such as Second Life) and tools such as blogging. It helps to have people blog their teaching and learning experiences to share with others and grow from everyone’s experiences.



Some other points made by Linda:

  • Smart Classrooms not only need bandwidth they need access to trained facilitators that can show students how to learn online (via @MichaelSmale)

  • One of the biggest problems for the learning place is low bandwidth in most QLD schools – only have a small number of schools with definite broadband – this is poor

  • We want teachers to be able connect with experts out there, and we want teachers and students and students and students to be able to connect with each other, no matter where they are.



Second up was Professor Greg Hearn, ARC Centre of Excellence for Creative Industries and Innovation (QUT), Director Creative Workforce Program.



Main points made by Greg about new broadband technologies were:

  • There is potential for a major paradigm shift in education

  • We need innovation in all three layers (technology, content, social) to have real progress in education

  • Some provocations for education –


o Is the music industry a model for the education system? Do we need new business and content models? What is the disruptive innovation that will bring about a paradigm shift in education?

o Should bots (online games) be adopted as the new primary school classroom?

o How do we harvest and accredit web 2.0 learning?

o Which is a more important budget item – the teacher or the IT infrastructure? They are roughly 50/50 at the moment – what should we spend more on?

o Who will be the gatekeeper of the virtual classrooms (that have no boundaries)

o Which physical facilities still add value in the education process?



Greg then moved on to facilitating discussion around some specific discussion points.



We focused on the two later discussion points of those provided to us by the main forum:



(2) Reality Check – what is holding us back?

  • The digital literacy of the educators (may need retraining)

  • One of the key restraints in our current education = regression in the mean i.e. we need to tailor programs to the less able students. One of the big changes that broadband can offer is bringing experts closer to students and tailoring education to the individual.

  • How will we create the right environment for teachers to be able to handle multiple students using multiple technologies, at different levels and in different regions? – it will bust apart the system – it is a challenge – but we need to create digital support networks.



(3) Next steps – what needs to be done?

  • Why don’t we de-regulate the university curriculum and let students do the individual courses they want to take?

  • Individuals will be better catered for in an open system


Brisbane Forum #bbfqld – Stream 2: e-Health

The second stream at #bbfqld was about e-Health.

The first presentation was from Alan Taylor, Director of Coeenet@qld, Radiology Informatics Program, Queensland Health.

Alan made the following points:

  • There will be a huge demand for e-Health applications, including for health records, health monitoring, video conferencing etc
  • Large investments in e-Health infrastructure will be needed.
  • There is absence of broadband competition outside the south-east corner of Queensland.
  • We need to understand the issues according to area and what are the issues for different people – health care providers, specialists, patients etc.
  • Health care needs a range of special security and privacy measures appropriate to the context of use.
  • Healthcare information needs a range of guarantees that information is available within stated timeframes
  • Health care traffic is symmetric. Asymmetric “residential” type services are not a good fit. Healthcare traffic requires “quality of service”
  • How will we know whether NBN is on track for healthcare needs? Questions to consider in assessing this – can we get competitive services throughout Queensland and can those services connect with each other? Can we get business grade services for health and government in both regional and metropolitan areas? Will the NBN services support symmetric traffic? Will there be sufficient bandwidth?

Importantly, Alan argued that we need to lobby for investment in Queensland. Funding for digital investment in regional areas absent in Queensland.

Alan also showed a video that demonstrated the different that technology makes to health in rural QLD. Crucially, it helps in making quick decisions about whether patients need transport to other facilities. It is about having up-to-date, accurate information, to make rapid, well-informed decisions. This enhances patient care.

The second speaker was David Hansen, a research scientist from CSIRO. David gave a number of thrilling examples of how CSIRO are using digital technologies in medical research – e.g. to map progression of Alzheimer’s, and many other things. I can’t really do the research justice by explaining in short-form here, but we will endeavour to make the slide set and audio recording available online soon.

General discussion report

Alan Taylor: We need the broadband, but we also need the smart people to get the right management of legal issues and proper business models to actually use the broadband and implement all the possibilities the broadband offers

Q: [Jessica Coates] How hard is training for people with digital technologies?

A: [David Hansen] – Generally you need a clinical champion to actually push the technology in the first place, but once people see the possibilities and how it all works, they generally get very excited about using it.

[Alan Taylor]: Most clinicians can see they need to do things better. Problem is knowing when they can use new technologies – will it save time and money? Will it expose them to risk of clinical malpractice?