The Inquiry
SUBMISSION TO AUSTRALIAN LAW REFORM COMMISSION COPYRIGHT AND THE DIGITAL ECONOMY (IP 42) INQUIRY BY TVB (AUSTRALIA) PTY. LTD.
TVB (Australia) Pty. Ltd. (TVBA) is a Sydney based satellite and iptv broadcast company with 63 of employees. TVBA was established in 1999 to provide packages of Mandarin and Cantonese language programs for subscribers throughout Australia TVB Australia presently has in excess of 22,000 customers.
TVB Australia provides various television channels containing programs to its subscribers and protects copyright of all programs by the use of conditional access technologies (CAT). CAT allows TVB Australia to determine who has access to the broadcasts of such programs and also to identify unauthorised access to those broadcasts.
TVB Australia has the exclusive right to broadcast television programs and channels produced and/or distributed by group companies of Television Broadcasts Limited (“TVB Group”) in Australia via its satellite and IPTV platform.  Such television channels including but not limited to TVBJ, TVB Junior, TVB8, TVB Xinghe, TVBS-Asia, TVBS-N, TVBN and TVB Lifestyle Channels.
We respectfully provide responses to the questions below.
We believe that the Copyright Act 1968 presently provides a high quality basis for robust and sustainable creative processes and industries. 
Under the present Copyright regime there is ample evidence that the balance between protection, incentive, remuneration and access has worked successfully. We have for instance moved from the analogue to the digital, downloads to streaming, centralised data to distributed computing and all at a time when the biotechnology and nanotechnology industries are experiencing the same evolution. Indeed the Copyright regime has supported such vigorous creativity and technological evolution that those who gained ascendency in the creative industries less than a decade ago, such as ISPs and the original online retailers, are being challenged by the owners and drivers of new technological applications. Surely the market and its meteoric evolution over the past decade or so is evidence that innovation and creativity are not only supported but driven by the existing Copyright regime with its present checks and balances.
We believe that the efforts to accommodate the ‘digital environment’, which is a contestable term rarely challenged, that Australian copyright law has unintentionally come to provide additional advantages or benefits to infringers.
It is clear on even the most cursory examination that actual enforcement of Copyright in Australia is sporadic and produces low quality results. The reasons for this include but are not limited to the absence of a national coordinated law enforcement approach, a number of agencies proactively resist exercising their powers to prosecute criminal infringements, no Australian university teaches law graduates all of the remedies available in the Copyright Act and inefficient responses to piracy from some copyright owners.
It has many years since the Australian government undertook a review into Copyright (or Intellectual Property Rights) enforcement in Australia. The last review was undertaken by the Australian Institute of Criminology many years ago and apart from having a number of significant deficiencies its work did not canvass the efficacy of any solutions to piracy.

Question 1.  The ALRC is interested in evidence of how Australia’s copyright law is affecting participation in the digital economy. For example, is there evidence about how copyright law:
a.	affects the ability of creators to earn a living, including through access to new revenue streams and new digital goods and services;
Copyright infringement in Australia is significantly worse than is reported Government figures, see for instance “Michael Speck and Gregor Urbas, “Criminal infringement of intellectual property rights in Australia; assessing recent reforms”, (2011) 29 Copyright Reporter 183.” 
The existence of this disparity between the reported infringement figures and the available data has been well known but not acted upon for many years.
Copyright infringement represents a transaction on which copyright owners lose despite the rhetoric to the contrary. Every copyright infringement is an exploitation of the personal property of another. It represents a lost sale, the lost potential for a sale and results in the devaluation of the copyright in relation to future sales.
There are presently some 14 international pirate pay television operations with a market presence in Australia. These operations pirate an aggregate as much of the available content as possible from the major territories which they resell back into the territories. Their marketing point of difference and the primary driver of their market attractiveness is their ability to aggregate (without permission etc.) the content of competitors and NOT timeliness or ‘fast tracking’. The various legitimate competitors, copyright owners and licencees, in this market would not by law be permitted to enter into agreements to establish such comprehensive aggregations of content.
Australia’s capacity to benefit from the digital environment is singularly diminished by a lack of adequate enforcement laws and enforcement structures.
b.	affects the introduction of new or innovative business models; 
There is no evidence that Copyright law in any way affects new and innovative business models in a negative manner. Rather there is significant evidence that Copyright law presently underpins an environment that is not only conducive to innovation but allows Australia to punch above its weight in the global digital markets.
We urge the ALRC to reject out of hand any submission based on theory or judicial commentary if it is not supported by direct evidence of business models or innovations that have been diminished or prevented by the current laws. Put bluntly we ask the ALRC to ask of those making submissions, ‘which innovations have been prevented by the present laws’ and ‘if copyright law inhibits innovation how then have we arrived at a time when innovation rules the digital markets’.

c.	imposes unnecessary costs or inefficiencies on creators or those wanting to access or make use of copyright material;
There are a number of unnecessary costs and inefficiencies imposed on creators and those wishing to exploit copyright. Some of these matters merit a separate inquiry of prove the need for another Australian Institute of Criminology style inquiry into Copyright Enforcement. We wish to refer you to the following matters;
•	proving subsistence of copyright is by far the most expensive aspect of enforcing copyright and this is so despite the existing presumptions. 
In the effort to develop a Copyright Act that keeps pace with the digital age proof of subsistence (ownership) is stuck in the industrial age. A copyright owner simply cannot prove the subsistence of copyright without a lawyer in what is an extensive historical exercise if a court is to be satisfied. An infra-structure already exists for more efficiently recording and proving copyright. International precedents already exist for a more efficient recording and proving of copyright.
At the same time an infringer can come to court fulsomely exploiting the copyright of others and is never called upon to provide any evidence of their claim of right. Requiring a party to proceedings to show how they come to possess the property they are exploiting would not displace the right not to incriminate oneself as copyright infringement cases are in part based on the notion of a right on the part of the alleged infringer so exploit the copyright involved as alleged.
•	where the civil remedies to copyright infringement fail or are otherwise of no utility the alternative remedies in the Copyright Act are deficient, not tied to any enforcement structure or are rejected by certain stakeholders.
Commercial pay television and broadcast piracy generally is driven by otherwise legitimately obtained content which is aggregated and then streamed to customers utilising iptv based technologies. Therefore almost all of the offences for criminal infringement of copyright are unavailable. This is so because there is no longer any need for interception or decryption technologies and the Copyright Act otherwise requires, for criminal offences, in all but one case the infringement to result in a copy which does not occur in streaming.
The Copyright Infringement Notice Scheme was imbedded in the Copyright Act and continues to be relied upon by government agencies as evidence of the utility of the available remedies and by academics for various propositions. In reality the relevant Regulation has never been passed and therefore the Scheme is not operational or capable of operation. The inability of law enforcement agencies to rely on this Scheme in instances of lower level offences not only reduces police resources that could be deployed against large scale or international infringers but inhibits to involvement of police in the investigation of copyright crime altogether. This has been our investigators consistent experience at an operational level.
There is no co-ordinated or integrated law enforcement infrastructure to deal with copyright or intellectual property crime. Australian law enforcement agencies, when they do respond, do so on an ad hoc basis and in some instances run ‘campaign style’ enforcement campaigns which generate low quality and low impact results. some law enforcement agencies point blank refuse to exercise their powers to respond to copyright crime and in some instances institutional decisions against involvement can occur simply to support the decision of middle level managers who have unilaterally rejected a copyright crime as recently occurred in Western Australia. It is also likely that some regulatory agencies will overlook anti competitive or deceptive and misleading conduct from infringers simply on the basis that the egregious conduct is ‘copyright infringement’ but are happy to become involved to assess copyright owners response to the very same infringements. Some organisations with market regulatory and consumer protection obligations have simply remain silent and uninvolved, the various fair trading departments fall into this category. As a result seeking the assistance of law enforcement agencies for instances of criminal infringement of copyright is confusing, overly bureaucratic, slow, inconsistent and in many cases not possible. It is without doubt that prosecution for criminal infringement is in an increasing number of cases the only viable remedy victims have. However because of the disarray in the structural processes the costs of taking action can often exceed the cost of the civil remedies. 
•	there has been a universal failure to protect the public, consumers and creators from crime occurring on the networks owned by ISPs as required by existing law.
Section 313 (1) of the Telecommunication Act 1979 provides a clear legal requirement on carriage service providers to use their best efforts to prevent crime on their networks. The explanatory memorandum indicates that this provision exists for the benefit of the general public. At present what can only be viewed as a cosy arrangement exists between carriage service providers and law enforcement agencies in which assistance will be granted after the fact and only on the basis of being compensated.
There is a real and urgent need for an inquiry into the failure of all parties to insist on the enforcement of carriage service provider obligations to protect the community.
 
Guiding principles for reform
Question 2.  What guiding principles would best inform the ALRC’s approach to the Inquiry and, in particular, help it to evaluate whether exceptions and statutory licences in the Copyright Act 1968 (Cth) are adequate and appropriate in the digital environment or new exceptions are desirable?
We urge the ALRC to take a strictly evidence based approach. The debate surrounding Copyright in Australia appears to perpetually challenge copyright despite the volume, value and velocity of creativity and innovation in our market place. 
We consistently see commentators declaring Copyright dead, suggesting theoretically that Copyright somehow inhibits creativity etc., or that Copyright owners cannot win the latest legal challenge to their rights. We note that one recent commentary declared that an industry had sprung up around challenging Copyright.
We urge the ALRC to look at the state of the market, in particular the state of the various links in the creative processes. The most recent ‘lethal challenges’ to Copyright, such as P2P, considered in the context of existing copyright law have resulted in robust and sustainable innovation and evolution of content industries rather than inhibiting the creators of the challenging technology or copyright owners.
Caching, indexing and other internet functions         
Question 3.  What kinds of internet-related functions, for example caching and indexing, are being impeded by Australia’s copyright law?
None. Australia’s copyright law has proved itself up to the challenges of the digital age and there is no evidence to the contrary.
Any expansion of the existing exemptions and protections for ISPs can only cause a consolidation of their emerging power in the digital market place to the disbenefit of creators. We already have a situation where ISPs are under no obligation to remove identified infringing content from their networks when the copyright owner is victimised but have the right to terminate customers who fail to pay ISPs for the very same content when it is sold by them. 
ISPs are an ineliminable intermediary in the digital age and at present they have adequate protection of the Copyright Act from prosecution for mechanical functioning of their networks. 
Transformative use               
Question 14.   How are copyright materials being used in transformative and collaborative ways—for example, in ‘sampling’, ‘remixes’ and ‘mashups’. For what purposes—for example, commercial purposes, in creating cultural works or as individual self-expression?
Tranformative use of copyright materials is already adequately provided for and promoted by existing copyright law. Copyright has always existed as a means of incentivising creativity and protecting original works. Copyright law has since its inception, regardless of where you may believe that occurred, had mechanisms for determining when a derivative or transformative work is an original work rather. The courts have shown themselves to be more than capable of balancing the interests of those who create, those who own copyright and those that would exploit the copyright of others.
Extending any exception beyond the protection of the results of original creative endeavours is the antithesis of copyright.
Question 16.   How should transformative use be defined for the purposes of any exception? For example, should any use of a publicly available work in the creation of a new work be considered transformative?
We submit that any definition of ‘transformative use’ that results in the protection of the products of original creative endeavours negates the need for the definition or further consideration.
Retransmission of free-to-air broadcasts          
Question 35.  Should the retransmission of free-to-air broadcasts continue to be allowed without the permission or remuneration of the broadcaster, and if so, in what circumstances?
No it should not. The retransmission of free-to-air broadcasts without permission once served the important social function of allowing greater access to television across a country and its society. This is no longer so, rather this legislation has become a sword and shield for pirates.
Free transmission of free-to-air broadcasts without permission are now the basis of large scale, international copyright infringing activity occurring on a commercial scale. Any consideration of this question must occur with an understanding of the nature, size and value of the global pirate television operations. Evidence from investigations undertaken on our industry’s behalf show that the global pirate television operations have an annual revenue in the order of $1 billion (aud).
Question 36   Should the statutory licensing scheme for the retransmission of free-to-air broadcasts apply in relation to retransmission over the internet, and if so, subject to what conditions—for example, in relation to geoblocking?
No it should not as it is simply unenforceable at present. Legitimate broadcast industries are adequately protected by copyright, contract and consumer protection laws. Extending the statutory licensing scheme to retransmission over the internet is either a duplication of commercial arrangements supported by existing laws that work or a new facilitation for piracy.
Question 37.  Does the application of the statutory licensing scheme for the retransmission of free-to-air broadcasts to internet protocol television (IPTV) need to be clarified, and if so, how?
No it does not. We are aware of some clever academic (theoretical) posturings on the topic here but it is beyond doubt how Section 135ZZJA of the Copyright Act applies to iptv transmissions. 
Furthermore a more urgent consideration is whether retransmissions of copyright material by way of iptv technologies have the benefit of any remedies for criminal infringement.
Question 38.  Is this Inquiry the appropriate forum for considering these questions, which raise significant communications and competition policy issues?
No it is not. These questions cannot be properly determined in isolation from considerations relating to the how the copyright laws are enforced, the possibility that those laws have become biased in favour of commercial infringers and the much larger competition and communications policy issues. by way of example the dramatic difference between the criminal infringement of copyright statistics that the government and its agencies knowingly rely upon here and internationally suggests that the entire copyright regime may need re-assessment. We contend that innovation and creative industries generally are evolving at such a pace that the only means for guaranteeing copyright laws serve all and not just the loudest voices is to entrench in the policy and legislation making processes a programmed periodic review that can adequately test the claims and assertions of the various stakeholders.
Other free-use exceptions
Question 48.    What problems, if any, are there with the operation of the other exceptions in the digital environment? If so, how should they be amended?
There is no evidence that there are any problems with the operation of the other exceptions in the digital environment. 
The ALRC should reject theoretical arguments or propositions of what might happen and consider just how many technological, social, creative and economic changes have been supported by the existing Copyright regime.
Australian copyright law has proved itself to be resilient, dynamic and very capable of developing alongside a society driven by technological change at every level.
Fair use 
Question 52.    Should the Copyright Act 1968 (Cth) be amended to include a broad, flexible exception? If so, how should this exception be framed? For example, should such an exception be based on ‘fairness’, ‘reasonableness’ or something else?
No. The Copyright Act, supported by extensive case law, Government policy that has mostly supported the creative processes already provides fair and reasonable fair use.
Replacing or amending the present fair use regime will result in uncertainty and ultimately require users and copyright owners to return to the courts to determine what is fair use in the circumstances.
Any unintentional over reach here would result in a flood of litigation with copyright owners and those that seek to exploit the copyright looking for definitive decisions across a broad spectrum of situations and circumstances.
Finally any amendment and/or extension will not put this matter to rest. Insofar as this inquiry has been driven in part by those that do not get what they want from the copyright of others amendments/extensions will merely change what they don’t get or create a new class of people not satisfied with the state of affairs. The present regime represents a complete balance of the various stakeholder’s interests.
Contracting out  
Question 54.    Should agreements which purport to exclude or limit existing or any proposed new copyright exceptions be enforceable?
Yes. The ability to determine how one exploits their copyright is one of the pillars upon which copyright law is built. The exclusion or limitation of rights underpins the ability of creative industries to adapt pricing and income to accommodate the market and economic circumstances.
Agreements that purport to exclude or limit copyright exceptions are adequately protected by contact law in Australia. We venture to suggest that not one submission has provided evidence that the law of copyright or contract does not adequately protect the interests of all parties in the contemplated situations.