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University of New South Wales Faculty of Law Research Series |
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Last Updated: 5 May 2008
“What are You Missing Out On? Big Media, Broadcasting, Copyright and Access to Innovation”
Kathy Bowrey[∗]
In Andrew T Kenyon (ed), TV Futures: Digital Television Policy in Australia (Melbourne UP, 2007).
Abstract
Copyright is not usually cited as the main reason for the slow development of digital broadcasting services in Australia. Flawed government policy is generally taken to be the main reason. However, copyright is represented as part of the package that helps media empires and the entrepreneurs behind the next killer apps turn the internet into a clunky, permission-driven, grey-box experience—frustrating the delivery of all the new, nifty, portable and empowering consumer electronics which could give us flexible, on-demand access to programs and films.
This chapter takes concerns about the negative influence of copyright on innovation and access to new media services seriously. However, my interest is not in proselytising the evils of Big Media, or analysing the evidence of global media’s capture of the policy agenda. Further, the discussion of copyright and digital broadcasting is all too present-minded and too focused on current external influences on the law, and especially US influences and comparisons. This chapter addresses the contemporary Australian situation by reconsidering the past of broadcast copyright—its introduction into the Copyright Act 1968 (Cth) and jurisprudential development in case law. This jurisprudence is important because, though perhaps too obvious to mention, it is still primarily the development of exclusive rights to copyright subject matter that establishes the means by which media owners effect control over access to their programs in Australia today.
Copyright is not usually cited as the main reason for the slow development of
digital broadcasting services in Australia. Flawed government
policy is
generally taken to be the main
reason.[1] However,
copyright is represented as part of the package that helps media empires and the
entrepreneurs behind the next killer apps
turn the internet into a clunky,
permission-driven, grey-box experience—frustrating the delivery of all the
new, nifty, portable
and empowering consumer electronics which could give us
flexible, on-demand access to programs and films.
We are provided with
glimpses of what could eventuate, given the right celestial alignment in the
universe—where technology,
industry, government policy, legislation and
the public interest work together to support a competitive marketplace rich in
new,
innovative media services and experiences. But contemporary copyright plays
a spoiler role. Copyright law, in alliance with Big Media,
frustrates access to
IceTv[2], TiVo and the
next generation of personal video recorders (PVRs) and ad-skipping
tools.[3] Copyright
systematically removes timely access to hotly anticipated new-release television
programs via YouTube and MySpace, making
us wait for them to re-emerge much
later, in a controlled time slot, on free-to-air
television.[4] Copyright
also frustrates those who are happy to pay, right now, for downloads of these
shows from an Australian iTunes store. Some
of these TV shows have been
available for purchase by US consumers from their iTunes store for some
time.[5] We have learnt
to fear the next generation of unwelcome technological protection measures,
restrictive high-definition formats like
Blu-Ray, and pushes to legislate for
broadcast flags and like
initiatives.[6] The
impression given is that the law will continue to be out of step with delivering
the potential of the new technologies and confound
consumer expectations of easy
access to content on demand well into the future.
This chapter takes concerns
about the negative influence of copyright on innovation and access to new media
services seriously. However,
my interest is not in proselytising the evils of
Big Media[7], or
analysing the evidence of global media’s capture of the policy
agenda.[8] With
broadcast copyright this often feeds into a presumptive siding with the
‘true’ innovators, the technology/consumer appliance industry, and
against the evil monopolists—the ‘old-media’ content
interest.[9] This is
an unhelpful dichotomy given the vertical integration and diversity of media
portfolios today[10],
and the high-tech collaborations being developed across the computer industry,
appliance makers, the entertainment industry and
electronic
games.[11] It also
ignores the significant power exercised by new media darlings like Apple
Computers[12] and
Google.[13]
The
discussion of copyright and digital broadcasting is all too present-minded and
too focused on current external influences on the
law, and especially US
influences and comparisons. What is missing is a broader sense of context and
reference to continuity within
the category of copyright as it has, and
continues to, develop in relation to innovation. What is currently missing from
the literature
is an account of the connection between the historical
development of the categories of copyright law and the muted prospects for
digital delivery we have come to anticipate.
This chapter addresses the
contemporary Australian situation by reconsidering the past of broadcast
copyright—its introduction
into the Copyright Act 1968 (Cth) and
jurisprudential development in case law. This jurisprudence is important
because, though perhaps too obvious to mention,
it is still primarily the
development of exclusive rights to copyright subject matter that establishes the
means by which media owners
effect control over access to their programs in
Australia today. For example, without this foundation, the much debated effects
of
the new, complex anti-piracy provisions are nonsensical.
The analysis is
in two parts. The first part considers how broadcast copyright and related
rights were conceived. The second part
addresses what this means for access to
innovation today.
The Conception of Broadcast Copyright in Australia
Legislative Development
A technologically determinist
reading of copyright’s history suggests that the arrival of a new and
distinctive technology instigates
a legal response in the form of new
copyrights. A new law is justified as a management tool to optimise the economic
climate for
the successful dissemination of the new technology. New copyright
laws police the unrestrained copying of new commodities that undermine
the
profits (for some) that were anticipated from the new form of
manufacture/service, and perhaps imperil investment in its further
dissemination. Copyright is also asked to protect the new ‘conduits’
for the dissemination of innovation. These two related
but distinctive
rationales can lead to differentiations in the nature and quality of copyright
awarded to original works (literary,
dramatic, musical and artistic), and to the
other subject matter (sound recordings, broadcasts, film and so
on).[14]
By the
1920s the commercial potential of broadcasting was coming to be understood, and
this interest was added to international copyright
conventions in
1928.[15] However,
given there was already protection to the underlying literary, dramatic, musical
and artistic works, law reform was not
a high priority. When it came to
considering the need for new copyrights in sound recordings, films and
broadcasts in 1951, the UK’s
Gregory Committee justified a distinction
between ‘original’ works and those only deserving
‘ancillary’ rights.
At the best, the record or film has called forth in its production a measure of artistic skill, but there is always a great measure of what is only technical and industrial in its manufacture ... these ‘contrivances’ (are not) original works.[16]
Another point of distinction for ‘industrial products’ was the
collective conditions of their production, with the new
subject matter involving
coordination of many, differently skilled efforts (for example, producers,
directors, cameramen, sound technicians,
effects and so on). It was recognised
that there may be a high degree of skill and perhaps artistic judgment involved
in aspects
of the production; however, acknowledging such a range of talent was
rejected as ‘not
practicable’.[17]
Rejecting
the original quality and skill of the labour involved as a defining contribution
to these new commodities left the main
reference point of the right as the mere
technological artefact. Thus, in relation to broadcasting it was the cost of
infrastructure
and transmission that was considered as the primary economic
interest at stake, and the raison d’être of protection.
The Gregory
Committee noted that additional to any copyright in the individual items that go
to make up those television programs,
it is not, in principle, very different from that of a gramophone company or a film company. It assembles its own programmes and transmits them at considerable cost and skill ... it seems to us nothing more than natural justice that it should be given the power to control any subsequent copying of these programmes by any means.[18]
The focus of the right was expressed in relation to protection of the
broadcast signal, to prevent filming of broadcasts and subsequent
rebroadcasting.[19]
There was, unsurprisingly, little anticipation of the development of
technologies and related industries that would enable greater
access to cultural
products, overcoming the spectrum limitations of analogue broadcasting and the
deterioration in quality that occurs
with analogue copying.
The Australian
Copyright Law Reform Committee of 1959, known as the Spicer
Committee[20], was
sceptical of some of the reforms to the UK Copyright Act 1956. In
particular it noted that, compared with the Copyright Act 1911
(UK)[21], the new
drafting had created an unprecedented focus on the enumerated ‘exclusive
rights’ of the owner. This drafting
change ‘directs the mind to
the infringer—to the things which must not be done without the
owners’ consent—rather than to the owner and what is
comprised in
his
ownership’.[22]
The Spicer Committee had no problem with adding protection against unauthorised
broadcasting of original
works[23], but it
struggled with how to differentiate the award of copyright to broadcasts which
lacked material form and logically exclude
rights in other spectacles and
performances that were ‘transitory in
nature’.[24]
Nonetheless, following the UK move, it recommended that a right be given to
broadcasting authorities to protect against the pirating
of their
broadcasts.[25]
The
Copyright Bill emerged close to a decade later. The time gap between the 1956 UK
legislation, the 1959 Spicer Committee and the
1968 legislation was explained
with reference to its controversial nature. In introducing the Second Reading of
the Bill, Attorney-General
Mr Bowen noted an ‘avalanche of complaints and
criticism which fell on (government)’. He defended the legislation as
‘a reasonable compromise’ of conflicting
interests.[26] It is
worth noting that the United States averted some of the controversy over
broadcasting interests by not recognising a right
in the broadcast signal per
se.[27]
It was
controversial legislation because in relation to the new Part IV
rights[28] precisely
what was protected, and why these interests needed protection, remained
substantively unclear. Discussion in the House
focused on ‘the entirely
new footing for
copyright’[29]
and the
‘unresolved’[30]
nature of the new rights. There were doubts raised about comparative benefits to
overseas media organisations and questions about
the implications for local
production. The failure to offer anything in this bargain to the authors,
playwrights and composers ‘who
have done the constructive
work’[31]
underlying the sound recordings and broadcasts was by far the most contentious
part.
Academic reception of the legislation matched that in the parliament,
with Sawyer suggesting Part IV of the legislation should have
been called
‘Special Copyright’ or ‘Limited Copyright’ because the
rights have ‘no relationship to
the general principles of copyright law,
and are unintelligible unless put in the context of the complex commercial
arrangements
which they
serve’.[32]
In
reviewing the debates today, it is clear that lawyers and politicians thought
the rights ‘unintelligible’ because they
were so loosely related to
traditional legal justifications for the origins of private property and the
presumed individualistic
property foundations of
copyright.[33] The
need to stop free riding by piracy touched a nerve but in relation to
broadcasting, given the lack of widespread access to home
recording equipment at
the time[34], and
restrictions on access to broadcasting
spectrum[35],
combating piracy would have been a tenuous justification. The legislation was
not seen to benefit creative people who are ‘the
life blood of progress in
the music and writing
worlds’[36], but
chose to support ‘the big companies and the monopolies that have exploited
the creative works of composers and writers
(and) ... had massive
returns’.[37] It
was argued that this unprincipled legislation reflected the interests of those
‘likely to have access to the corridors of
power’.[38]
Broadcast Copyright in the Courts
It is one thing for media organisations to lobby for
particular law reforms. It is another thing to have those rights favourably
interpreted
by the courts, who need to reconcile the legislative policy with the
language of the legislation and established methods of legal
reasoning.
In
1998 the High Court in Phonographic Performance Co of Australia Ltd v.
Federation of Australian Commercial Television
Stations[39]
considered the relationship between the s. 31 exclusive right to broadcast
original works, and the copyright awarded to the broadcaster
in s. 91. It was
found that the rights awarded in Part III and Part IV of the Act existed
independently and
concurrently.[40]
However, it was not until fifty years after the first television broadcast in
Australia, and almost forty years since the passage
of the legislation, that the
courts had the opportunity to deeply reflect upon the origins and intent of
broadcast copyright in The Panel
cases.[41] Perhaps in
light of the legislative history it is not surprising that Finkelstein J would
observe: ‘It is usually apparent
whether a particular work may be the
subject of copyright. ... There are, however, some exceptions, and this
case deals with one of those exceptions. This appeal is concerned with copyright
in a television broadcast’ (emphasis
added).[42]
The
Panel litigation revolved around possible infringements by Network
Ten’s The Panel program by copying and rebroadcasting segments of
Channel Nine programming. The segments were incorporated into The Panel
chat and commentary, and Channel Nine shows and stars were generally subjected
to derisory treatment. While Network Ten had possible
defences of insubstantial
taking[43] and fair
dealing (criticism and
review[44] and/or
reporting the
news[45]), the
proceedings required some definition of the basic unit of the protected
broadcast, so that these tests could be applied to
the segments used by Network
Ten.
Interpretations drew upon various tortured attempts to make sense of the
amalgam of provisions pertaining to broadcasting in the
Act.[46] However,
overall there were two possible interpretations—a formalist/purposive view
and a physicalist view. The formalist interpretation
looks beyond the
materiality of the broadcast signal to award copyright to the form/purpose of
the broadcast, read as television
programs. The physicalist interpretation
awards protection to the material provision of a service, with copyright
attaching to the
transmitting or communicating of signals.
At first hearing,
Conti J, citing the Gregory Committee, favoured a purposive view of the
protected broadcast, stating that
the only feasible candidate must be a television broadcaster’s programme, or respective segments of a programme, if a programme is susceptible to subdivision by reason of the existence of self contained themes. Moreover in the case of commercial television, an advertisement should logically be treated in the same way as a separate programme, particularly given the difference in theme, the circumstance of discrete production, and the factor that the intellectual property rights involved in any one advertisement would be often complex.[47]
The problem with this approach is that it leads to an unstable scope of
protection that tends to conflate the protected broadcast
with a presumed
underlying dramatic content, narrative or theme.
On appeal the Full Federal
Court preferred a physicalist view:
A television broadcast is defined by reference to the visual images that are broadcast ... in my opinion, ... there is copyright either in each and every still image which is transmitted or in each and every visual image that is capable of being observed as a separate image on a television screen.[48]
The majority of the High Court then rejected this on the grounds that:
The context in which the broadcasting right was introduced, including well-established principles of copyright law, the inconvenience and improbability of the result obtained in the Full Court, and a close consideration of the text of various provisions of the Act relating to the broadcasting right, combine to constrain the construction given to the Act by the Full Court and to indicate that the appeal to this Court should be allowed.[49]
The physicalist approach favoured by the Full Federal Court leads to a definition of the protected broadcast ‘evacuated of any reference whatsoever to anything ... which could be an object of aesthetic or critical attention or evaluation’.[50] It awards excessively strong protection of images and sounds broadcast compared with that accorded to the Part III original works, regardless of the point, skill or costs associated with their assemblage. Accordingly, the High Court found that:
Where the ‘subject-matter’ of copyright protection is of an incorporeal and transient nature, such as that involved in the technology of broadcasting, it is to be expected that the legislative identification of the monopoly ... and its infringement ... of necessity will involve reference to that technology. But that does not mean that the phrase ‘a television broadcast’ comprehends no more than any use, however fleeting, of a medium of communication. Rather, as the Gregory Report indicated, protection was given to that which had the attribute of commercial significance to the broadcaster, identified by the use of the term ‘a broadcast’ in its sense of ‘a programme’. In the same way, the words, figures and symbols which constitute a ‘literary work’, such as a novel, are protected not for their intrinsic character as the means of communication to readers but because of what, taken together, they convey to the comprehension of the reader.[51]
The High Court’s determination thus was that the protected broadcast
involves more than a singular image and relates to programs (which
are stated as not the same as a dramatic work, but described in terms of
segments, items and themes). However, the court then
deferred definition of the
relevant units of programming ‘of commercial significance to the
broadcaster’ to a factual
determination of infringement by the Federal
Court.
The Full Federal Court then proceeded to determine infringement
without endorsing any particular criteria for determining a unit of
programming.
In reflecting upon the test of whether a substantial part was taken, Hely J cast
doubt on the assistance to be provided
by a consideration of whether the two
works were in competition, as one work may not be a substitute for another, yet
unfair advantage
of the plaintiff’s skill and labour may still have been
taken. He concluded that
the fact that the Panel Segments were used by Ten for the purpose of satire or light entertainment [and therefore comprised a different object or purpose to that of Nine] strikes me, with respect, as throwing little, if any, light on whether the parts taken were a substantial part of the source broadcasts.[52]
The judicial ‘solution’ to the definition of broadcast copyright
provides us with little practical criteria for resolution
of the basic issue at
stake: what are the limits to the protected broadcast, or, as the Spicer
Committee noted, ‘what is comprised
in [t]his ownership’? It remains
particularly unclear what kind of use would not be of commercial
significance to the broadcaster, even though the High Court confirmed that the
requirement in s. 14 that the taking
be of a substantial part means that it does
not follow that any copying will
infringe.[53]
As an
exercise in legal reasoning, The Panel cases engage in ‘hiding the
ball’. The Federal Court and High Court judges simply pass the broadcast
ball along one of
the two likely trajectories, bolstering their choice with
reference to the chosen meandering path that crosses the related broadcast
sections in the Act, even though no obvious preferred view can be said to leap
out. As Pierre Schlag argues in his article ‘Hiding
the Ball’, the
whole charade rests on suppressing recognition of the plurality of potential
meanings and resisting inquiries
into ontological questions about
law.[54] To end The
Panel dispute with recourse to a factual determination of the protected
program to be made at the lower level, implies that the identity
of the
broadcast ball is readily apparent to appropriately trained personnel, without
any need to clearly define anywhere the objective
characteristics to be applied
to recognise the qualities of this particular kind of ball. In this inquiry,
what the law continually
evades is a discourse about the nature of this
commodity and its need for protection, notwithstanding judicial notice that it
is
all about the ‘commercial significance’ of the segments
broadcast.
The Propertisation of Media Audiences
Critiques of ‘consumer society’ suggest
that the expansion of copyright subject matter is not about protecting
investment
in innovation. What copyright facilitates is the advance of
capitalist relations into new fields of social life. In other words,
new
additions to copyright subject matter create the ‘culture industry’,
to support and supplement the existing trade
in manufactured objects and to
advance commodification into other domains. In our economy there is an insistent
‘need to generate
a constant stream of unique (if often similar) products
with a severely limited life
span’.[55] What
drives desire for these new products, and especially for more
‘ephemeral’ cultural products, is the messages contained
in their
marketing. Consumption choices primarily reflect purchaser receptivity to the
‘symbolic meaning’ of the commodities,
as ascribed to them through
their particular advertising and
marketing.[56]
Commercial
mass media is a major mechanism for stabilising the serial production of new
meanings for products and services, and hence
it is fundamental to
creating/marketing new needs. Thus, as well as focusing on the importance of
protection of the value of the
new media conduits, commodification critiques
infer we should look to the way copyright accommodates the creation of rights
in the production of mass audiences. Copyright and broadcasting
regulation assembles audiences that facilitate the marketing of goods and
services.
Who owns and has access to mass communications media becomes
central to the capitalist’s risk-management strategy because it
increases
political and economic power generally. Media concentration, vertical
integration and diversification further increase
access to investment capital,
global market power, and national and international political influence. This
combination of tools
and powers allows for ‘an unprecedented degree of
potential control over the range and direction of cultural
production’.[57]
The messages conveyed by film, radio and television are essential to create
‘symbolic’ meanings for consumers. They drive
passions and fashions,
and suggest identities to be fulfilled through consumption.
Copyright awarded
to ‘other subject matter’ is slightly different from the copyright
awarded to works, because of the
way these media forms facilitate consumption
more broadly. Defining the property owned within the new subject matter
is not the main game and the lack of a clear definition of these rights would
not for the most part create any significant problems.
It is not really
necessary for a media proprietor to define or own the media spectacle they
create as a form of property within copyright.
What is more important to them is
to protect the dynamic of assembling audiences, to on-sell to advertisers and
invent and reinvent
demand for more and more products and services.
It is
clear from the legislative history that broadcast copyright was never clearly
understood within copyright principles. However,
its fundamentally featureless
shape—wavering between its technical characteristics as a signal, and
artistic pretensions as
a dramatic work—makes sense once it is understood
that the real object of regulation is not supposed to be the broadcast at
all.
As s. 91 of the Copyright Act makes clear, what is protected in
copyright is primarily determined with reference to a right to service an
audience as made possible in accordance with a licence awarded under the
relevant broadcasting regulation, and
as refined by various content regulations.
This means it is the audience assembled to receive a mass media service that is
the interest
at stake in broadcast copyright. These audiences are not demarcated
by copyright, but by broadcast regulations that create
limits—geographically,
culturally and in line with other particular
political interests and objectives that affect what can be broadcast, to whom,
and when.[58]
By
using the power to grant media broadcast licences, and the power to create
copyright in the content broadcast, the state creates
a legal capacity to
‘own’ these audiences of consumers. This, of course, entails the
right to directly communicate ‘content’/advertising
and marketing to
‘the public’. Thus it could be argued that in advanced capitalist
societies, what copyright primarily
creates is not an exclusive right to own
content or the means of distribution of
content to audiences. What copyright supports is the production of desire/demand
for the actual cultural
products broadcast, as well as for the other diverse
kinds of manufactured objects and services advertised to the public via the
mediums of commercialised mass communication.
This reasoning leads to a
rejection of the view that copyright expands into new subject matter as we come
to appreciate new forms
of cultural practice and creativity. There is little
intrinsic value or motivation to be ascribed to the cultural goods and services
produced, because the greater number of them are manufactured and marketed in
light of market survey information about the character
of the mass audience, and
their potential viewing, listening and reading choices.
The construction of the audience-as-market and as-consumer has meant that the relationship between producers and their audiences is increasingly commercially calculative, rather than premised on disinterestedness. Moreover, it is argued that the significance of the already existing relationships between members of the audience is seen to have diminished; that is, they are designated as a set of individual and equal consumers, who are organised as a serial rather than an associative community.[59]
The media and medium’s value is not calculated in terms of discrete
units of content, but in terms of exhibition value and franchise
longevity.[60] Thus it
is no surprise that in considering rights in broadcasts, there was a reluctance
to engage in a discourse about the creativity,
originality and authenticity of
mass media. The argument that such new endeavours deserve a copyright on the
grounds of their originality
misses the point, and a focus on copyright law
revolving around the foil of creativity only diverts us from studying the more
important
economic relations and conditions for consumption that broadcast and
copyright regulations make possible.
There is support for this reading of
broadcast copyright from the judicial development of the exclusive right to
perform and broadcast
works to ‘the public’. In the Telstra
music-on-hold
case[61], the High
Court affirmed the view that the private setting of receiving a communication
was irrelevant to it being a communication
‘to the public’. Dawson
and Gaudron JJ endorsed the relevant object of the exclusive right as the
‘copyright owner’s
public’. This is judged by reference to the
question, ‘Is the audience one which the owner of the copyright could
fairly
consider a part of his
public?’.[62]
The distinction between what is ‘in public’ and what is ‘in private’ is of little assistance in determining what is meant by transmission ‘to the public’. The transmission may be to individuals in private circumstances but nevertheless be to the public. Moreover, the fact that at any one time the number of persons to whom the transmission is made may be small does not mean that the transmission is not to the public. Nor does it matter that those persons in a position to receive the transmission form only a part of the public, though it is no doubt necessary that the facility be available to those members of the public who choose to avail themselves of it.[63]
It did not matter to copyright law that the public may not have even wanted
to receive the transmission.
The valuable asset created by the investment in
broadcast technologies remains primarily the creation of mass media audiences
for
particular kinds of programming and advertising. This is conventionally
measured in terms of program statistics—ratings, demographics,
market
trends and so on.[64]
However, copyright also facilitates the production of subsidiary markets of
audiences, such as the private audience for a video screening
in a
hotel[65], or receipt
of music-on-hold services. Copyright expands its ambit to include all forms and
scales of audience, capable of a marketing
definition of interest to
advertisers, and formulated so as to permit extraction of a fee.
With digital
distribution and the ability to stream on demand to an ever increasing range of
media platforms, the technological specificity
of copyright provisions designed
for an earlier age of mass media communications became a limitation on the
ability to control and
direct cultural production. The Copyright Amendment
(Digital Agenda) Act 2000 (Cth) thus repealed the earlier definition of
broadcast that pertained to wireless broadcasts, replacing it with ‘an
extended,
technology-neutral definition which means a communication to the
public within the meaning of the Broadcasting Services Act 1992. ... The
communication right is not limited to specific technologies. The definition of
“communicate” makes it clear
that an electronic transmission may
occur via a combination of delivery
mechanisms’.[66]
This amendment affirms the capacity to treat all potential consumers/audiences
as the media owner’s property, regardless of
the medium of
communication.
The Public Interest and Copyright
Though there is still a passing reference to the public in copyright legislation, this is merely as constituted as a potential collective to be acquired by existing media proprietors, marketed to and on-sold to advertisers. There is no space for a proper consideration of the ‘public interest’ within copyright itself because the media owner’s private interest is seen as mutual with serving the public interest, by servicing the provision of media products, services and advertising to them, by whatever means of delivery chosen. To the extent that it matters at all, the public interest is really presumed to be catered for by the broadcasting regulations and by reference to the specific licensing conditions of the broadcaster. But there is no public interest to be found contained in the application of copyright broadcast itself. Further, everyone is presumed to fall within at least a few demographics of interest to media owners and marketers. As such it is not possible to conceive of a legitimate public interest in receiving material outside of established media market dynamics, such as content obtained at the user’s direction and obtained for free. User initiative in servicing personal consumption choices can only be seen as anarchy and deviancy.
What this Means for Access to Innovation Today
The history of copyright shows that throughout the
nineteenth century new rights were added in response to industry lobbying, to
facilitate
control over industry development and expansion. However, there was
little standardisation of the rights until the collation of the
various
industry-specific Acts in the 1911
revision.[67] The 1968
reforms further universalised these rights, while providing for industry and
technological specificity for Part IV subject matter. Limits to the new
copyrights were considered a necessary ‘compromise’, given the
diverse interests at
stake and the problem of there being no fundamental
principle agreed upon, on which such rights could be more broadly
based.
Compare that history with the origins of the 1968 Act, and this
explanation given for the Digital Agenda legislation from Attorney-General
Daryl
Williams:
Some of you might ask ‘Why is copyright reform needed?’. The reason why is clear.
Advances in communications technology have exposed gaps in copyright protection in the on-line environment. Existing transmission-type rights in the Copyright Act are technology-specific and are limited in scope. ...
When the Copyright Act was passed in 1968, the Internet and cable TV were in the realm of science fiction and it was thought that a wireless broadcasting right would cover all the possible broadcasting uses of copyright material. Because of the fact that the broadcasting right is technology-specific, the advent of the Internet and cable pay TV has meant that owners of copyright are not able comprehensively to control the use of their work on those systems. Copyright owners, users of copyright material, ISPs and carriers have all become increasingly frustrated by the uncertainty surrounding copyright in the digital environment, particularly the Internet.[68] (emphasis added)
Throughout the late twentieth century, media ownership globalised (so far as
media ownership rules support this), portfolios were
diversified and media
holdings consolidated. Earlier common sense distinctions between the print,
radio, music, cinema and television
sectors subsequently further blurred.
However, for the most part, ‘convergence’ was simply code for
repackaging and rebroadcasting
‘old media’ content in a range of
formats.
Nonetheless, with ‘convergence’ as the buzzword of the
future and the hope for industry
expansion[69], it
becomes arguable that there is, or at least will be, just one amorphous
‘entertainment industry’, with fading, historically
distinct
sectors. Given this development, the old industry-specific copyrights are
projected as an ill-fit with the economic landscape.
If it is believed that
copyright has always been there to service the ‘needs’ of industry
and provide economic ‘incentives’
for cultural production, then it
now becomes common sense that the rights need to be further generalised for the
digital age—to
erase the newly identified ‘gaps’ and
‘limitations’, and deliver ‘comprehensive control’ and
‘certainty’. Copyright owners, whether they be writers, musicians,
artists or the generic ‘media owner’, now have the same level
of entitlement to ‘protect’ their assets from unauthorised
access
and distribution.
Previously, there was legislative concern for
copyright’s internal coherence as jurisprudence—defined with
reference to
private property principles and social priorities such as providing
support for original cultural production. Out of respect for
this, distinctions
between Part III and Part IV rights were established. In the late twentieth
century justifications for law reform
have been externalised—the problem
is with the new technology. A more personalised engagement with media is not
seen as a positive
development—by simply having access to a more diverse
range of media, to many points of distribution, to technologies that
enhance a
new form of durability for works and facilitate a higher degree of portability.
These technological ‘advances’
are cast as threats to the
‘established’ industry order.
This means, of course, that the
providers and purveyors of these new technologies have not been accorded the
same status as the innovators
of the early to mid-twentieth century. They are
not seen as another new industry that also ‘needs’ new rights from
copyright.
Digital innovators have been constructed as outsiders, newcomers,
freeloaders and rebels that need to learn their place within the
domain of
copyright. In the digital agenda debates, new technologies are represented as
the cause of the problem—platforms
for the new forms of deviancy that
imperil the progress of entertainment markets. Accordingly, in place of new
rights, internet service
providers (ISPs) and computer software makers are only
given new exceptions to infringement—that apply if they can prove they
are
compliant.[70]
Whereas
previously there was a concern for regulatory capture by media owners with
‘access to the corridors of power’,
with the digital agenda debates
the preoccupation became one of parliament demonstrating legislative capacity to
rectify an apparent
regulatory ‘failure’. This meant fine-tuning
market controls, by limiting the capacity of others to service new and emerging
kinds of audiences for works.
The Realities of User Interactivity
In 2006 the Time Magazine person of the year was not another great man:
It’s a story about community and collaboration on a scale never seen before. It’s about the cosmic compendium of knowledge Wikipedia and the million-channel people’s network YouTube and the online metropolis MySpace. It’s about the many wresting power from the few and helping one another for nothing and how that will not only change the world, but also change the way the world changes ...
And for seizing the reins of the global media, for founding and framing the new digital democracy, for working for nothing and beating the pros at their own game, TIME’s Person of the Year for 2006 is YOU.[71] (emphasis added)
As is well discussed in the ‘new media’ literature, one of the
most distinctive aspects of digital media is the change
in the quality and
nature of interaction with audiences, from that possible with mass media and
broadcasting.[72] With
the internet and narrowcast technologies, the audience is not preassembled or
shackled to precise locations, limited modes of
viewing and passive forms of
interaction. They now become participants in defining their relation with the
media ‘provider’.
We can choose to learn about what is the latest
great thing from a myriad of user-provided information sources—fan sites,
blogs,
SMS (Short Message Service), emails, friends’ lists, playlists and
so on. We can tap into MySpace, YouTube, Flickr, Wikipedia
and Google to satisfy
our transient whims for more. There are ample applications that allow us to
download, upload, compile, share
and store the data we still anachronistically
refer to as photos, music, television programs and films. There is an emerging
economics
of ‘sharing’ that is about the economic value of sharing
cultural content (and not about free and open source
software).[73] But can
copyright law think beyond ‘an audience’ and allow for an identity
other than as passive recipient of a media
message?
Superficially, digital
copyright law has created the power to tip the balance strongly against
‘user’s rights’,
by, for example, supporting strong forms of
digital rights management (DRM) and restricting access to circumvention
tools[74], and
obliging service providers to promptly remove allegedly infringing
material.[75] However,
historically, users have been very sceptical of these legislative
initiatives.
In the 1990s there were a multitude of websites devoted to
posting online and mocking the latest ‘cease and desist’ letters
from media owners received by fandom, voicing outrage and pillorying media
companies for their contemptible attitude of ‘proprietorship’
towards audiences. The bad press led to some softening of attitudes and legal
practice towards copyright and trademark infringement
by the fan base. These
developments supported a body of academic
literature.[76]
Exclusive
content deals, such as that forged in the mid-1990s between Microsoft Network
and Paramount/Viacom that made some high-demand
content only available to
Internet Explorer users and not accessible to Apple Mac or Netscape users, were
not renewed. ‘Star
Trek fans spoke, and we listened’, said David
Wertheimer, president of Paramount Digital
Entertainment.[77]
Anti-piracy
messages have been continually diluted by the profiling of well-regarded artists
who distance themselves from the official
position of the Recording Industry
Association of America, and by the emergence of mainstream ‘social
networking’ stars
such as Lily Allen and the Arctic Monkeys where liberal
online strategies were essential to their achieving phenomenal global
success.[78] With the
exception of Apple’s iTunes store, which is estimated to have 70 to 85 per
cent of legal digital music in the United
States, pay-per-download music
services have struggled, rife with indecision about business models and consumer
demand. This is a
market that generated US$400 million in 2005 and is expected
to reach US$14 billion by
2011.[79]
There is
a growing sensitivity to consumer awareness of, and irritation with, the more
obviously restrictive forms of DRM, such as
code that ties you to a particular
player or platform, or times
out.[80] Market
surveys show that consumers value the least restrictive
options.[81] But
consumers will always respond to good-value content, even if it is delivered in
a restricted
environment.[82]
Many
consumer organisations are lobbying against
DRM[83], and there is
a move to produce handbooks to alert users to problems with it that can only
increase its
unpopularity.[84]
Furthermore, in France there is continuing pressure to expand the role of
competition law, especially in terms of third-party licensing
of
DRM.[85] Most
recently, Apple Computer’s Steve Jobs has sought to defend his
corporation’s decision to develop FairPlay DRM technology:
Since Apple does not own or control any music itself, it must license the rights to distribute music from others, primarily the ‘big four’ music companies: Universal, Sony BMG, Warner and EMI. These four companies control the distribution of over 70% of the world’s music. When Apple approached these companies to license their music to distribute legally over the Internet, they were extremely cautious and required Apple to protect their music from being illegally copied. The solution was to create a DRM system, which envelopes each song purchased from the iTunes store in special and secret software so that it cannot be played on unauthorized devices.[86]
Coincidently, the licensing agreement with the Big Four is due for
renegotiation. Jobs is carefully trying to position Apple to not
take the blame
for continuing with its iTunes restrictions. He may also be pushing for FairPlay
to become the industry standard for
DRM that Apple licenses to
others.[87] Audience
disinterest and disobedience to the dictates and spirit of copyright and concern
over showing any servility to the ‘established’
culture industry is
now starting to be factored into business and marketing strategies.
This is
not to suggest that ‘interactive audiences’ are beyond the confines
of consumerism. Convergence has simply led
to different kinds of audience
assemblages and marketing practices.
When convergence simply meant repacking
old content for new forms of delivery, corporate advertising strategy sought to
maintain a
consistent message across all the potential platforms. The strategy
was one of blanket marketing drawing upon the psychological profile
of the
target generations. To maintain consumer interest the one idea was expressed in
different ways—the ‘playful’
viral Web campaign, the billboard
message, the print media, radio, free-to-air television advertising campaigns
and so on: ‘This
is believed to be more effective as there are multiple
encodings of the same idea, which reinforces the impact on the
consumer’.[88]
However,
this ‘blanket’ strategy is now giving way to much more sophisticated
methods of communicating with audiences,
and playing on their individual
technological interests and abilities. The new method is transmedia
planning.
Time Magazine recognised the foundations for it in December
2006 with the arrival of Web version 2.
The new Web is a very different thing. It’s a tool for bringing together the small contributions of millions of people and making them matter. Silicon Valley consultants call it Web 2.0, as if it were a new version of some old software. But it’s really a revolution.[89]
Acknowledging the ‘revolution’ of interactivity among users
involves recognition of the commercial value of the ‘sharing’
input.
However, it is a mistake to think of this user interactivity and sharing of
contributions in the old 1990s language of proprietary
versus free flows of
information. Transmedia is a new method of cultural production, where the
numerous small accumulations of effort
are available and able to be engaged in
new media enterprises.
Originally transmedia was a concept used to explain
the dynamics of fan-based fiction, where fans engaged in constructing new
narratives
surrounding characters and events. Some of this was commercially
produced; for example, Dr Who, Star Trek and Buffy the Vampire
Slayer novellas. These products were both derivative and highly original,
and, in a commercial sense, confused the traditional demarcation
and hierarchy
of ownership that copyright and trademark impose.
The success of transmedia
story-telling was picked up on and reformed as part of new media advertising
strategies, especially those
targeting younger demographics. ‘Transmedia
planning’ takes for granted the availability of audience access to
multiple
platforms and the attraction of active engagement with narratives, and
directs these resources to serve corporate ends:
In this model, there would be an evolving non-linear brand narrative. Different channels could be used to communicate different, self-contained elements of the brand narrative that build to create a larger brand world. Consumers then pull different parts of the story together themselves. The beauty of this is that it is designed to generate brand communities, in the same way that The Matrix generates knowledge communities, as consumers come together to share elements of the narrative. It has a word of mouth driver built in.[90]
Transmedia concepts have already affected the delivery of mainstream
television. Examples include current high-ranking programs in
Australia such as
Lost, Desperate Housewives, Ugly Betty—where
additional incidental plot detail and ‘add-on’ content like
interviews with stars may be revealed on the
franchise web page. This
‘interactivity’ with the narrative is presumed to support franchise
loyalty and longevity, and
generate a bigger audience share through playground
and water-cooler talk. Film genre examples include The Matrix and Lord
of the Rings franchises, where web pages and computer games were utilised to
deliver ‘more connections’ for audiences to interact
with.[91] In these
examples traditional media forms are being pushed out into new terrains, and
with that, the old notion of audience transforms.
The level beyond this
includes tabloid current affairs television programs, blogs, forums, game shows
and Massive Multiplayer Online
Role-Playing Games (MMORPGs). Here, interaction
with other participants and the outside world forms part of the unfolding
narrative
experience, and reaction to those inputs is evident to the
audience/players. Where individual contributions to the whole media experience
are able to be identified and valued, a dialogue on ‘virtual
property’ and the right to co-own user contributions is
starting to
emerge.[92] Copyright
tests of transformative use and parody will also be challenged by these efforts
which are separate but deeply collaborative
in
nature.[93]
Beyond
this are the new media vehicles such as Wikipedia, MySpace and YouTube. These
form the latest level of ‘mass’ user
collaboration. Compared with
the aforementioned examples, with these sites it is quite hard to discern any
particular direct control
over the productions, or any commercial benefit to be
had from encouraging any particular narrative line. Site owners can edit and
remove unwelcome contributions and there are efforts to enforce copyright.
However, the reality is that the size and scale of the
enterprise ensures
serious limits on copyright enforcement. For example, popular items can be
removed by site managers, but they
are most likely to simply be reposted from
another address. As with DRM issues, overt ‘management’ of
user/contributor
interactions conflicts with the ethos of the medium, and
intervention is likely to drive users to move on and contribute to other,
more
amenable alternatives.
What Copyright is Missing
We now have many mainstream notions of audience
interaction usurping the passive mass media notion, preferred by copyright.
However,
coming out of the Digital Agenda and the amendments brought about by
Chapter 17 of the Australia–United States Free Trade Agreement,
there is
little appreciation of the significance of that change. We have had minor
reforms to accommodate digital realities—a
clumsily expressed, limited
time and format-shifting
exception[94], a
parody exception[95],
and confirmation that region encoding is not (generally) a ‘technological
protection
measure’.[96]
These are laughable. They fail to take into account the complexity of the
changes to audiences that are part of the media age we
are now in. They do
nothing to address the social and economic context of uses of copyright material
today, but only sustain the
gap between law and social expectation. Further, our
newly reformed copyright law is entirely focused on what we were doing
with media a few years ago. It suggests no legal capacity to understand and
respond creatively to where these technologies and practices
might be
going.
This reflection on Big Media, broadcasting and copyright began with an
exploration of the legislative and jurisprudential development
of Part IV rights
because it is that history that created the confined space the law is stuck in
today. The problem with contemporary
Australian copyright is not just that
digital copyright laws reflect the sway of old media interests over new media
ones. It is not
simply that the laws are designed to suppress or outlaw everyday
technological practice. The larger problem is the historical one.
Copyright did
not really know how to accommodate mass media such as broadcasting, and did it
so crudely. It created a broad, ill-defined,
far-reaching power for media owners
to communicate with audiences in Parts III and IV of the Act. It created the
right to assemble
and market to an ongoing sequence of mass media audiences
(with the add-on of broadcasting regulations to adjust that content, in
line
with general guidelines in the public
interest).[97] Limited
exclusive rights were then generalised by the courts, and even further
abstracted by the digital agenda and subsequent revisions.
While there was no
direct right to own audiences created by the Copyright Act, that
nonetheless is the current effect of the law.
The second part of this chapter
explored the implications of this history and how far media practice has moved
on from what copyright
law has imagined is possible and desirable. For the time
being, the retro-flavour of copyright does mean that Big Media can, so far
as it
chooses to, try and encumber the operation of the new digital devices and stifle
development of a greater range of media services.
However, this is an
unrealistic long-term strategy. There is quite limited market growth in pursuing
that option. Securing audience
loyalty will be harder than it was in the past.
The younger demographics will increasingly require some concessions to their
technical
appetites and interactive lifestyles. Eventually the laws and
practices will have to change.
What is currently missing from Australian
copyright law is comprehension of the realities of innovation and audiences
today. What
copyright needs to do about this is begin to offer something
relevant to contemporary audiences to support the future of innovation.
The
alternative is that copyright remains the master of old media aspirations, but
it ceases to have any relevance to the future
of cultural production.
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Notes
[∗] With thanks
to Lloyd Sharp for the good ideas, and Peter Maddigan for research
assistance.
[1]
Australian Consumers’ Association, ‘Submission to House of
Representatives’; Maiden;
Knight.
[2]
Hassall.
[3]
Kohler.
[4]
Moses.
[5] Lee and
Higgins.
[6]
Doctorow, ‘Europe’s Broadcast
Flag’.
[7]
Lessig.
[8] Murray.
There is to date no comprehensive study of the influence of media owners on
copyright law
reform.
[9]
Sohn.
[10] See, for
example, ‘Who Owns the Media’, Stop Big Media,
http://www.stopbigmedia.com/chart.php
[11]
Blu-Ray, for example, is supported by Sony, Apple, Dell, Hitachi,
Hewlett-Packard, Panasonic, Pioneer, Philips, LG, Samsung, Metro-Goldwyn-Mayer,
Walt Disney, Twentieth Century Fox, Paramount, Buena Vista, Lionsgate
Entertainment, Universal Music, Sony BMG and Electronic
Arts.
[12] For a
sceptical view of Apple Computers, see Doctorow,
‘Opinion’.
[13]
Vise and Malseed; Jeanneney. See also Googlewatch:
http://www.google-watch.org/
[14]
See Bowrey.
[15]
The Berne Convention for the Protection of Literary and Artistic Works
was signed at Berne on 9 September 1886, revised at Berlin on 13 November 1908,
and further revised by the Rome Copyright Convention signed at Rome on 2
June 1928. Article 11bis gave authors of literary and artistic works the
exclusive right of authorising the communication of their works to the public by
radiocommunication.
[16]
UK, Board of Trade, Copyright Committee, p. 33, para.
[86].
[17] ibid.,
p. 36, para.
[99].
[18] ibid.,
p. 41, para.
[117].
[19] It is
interesting to note that the Gregory Committee was particularly moved by recent
embarrassment caused to the BBC by the unauthorised
circulation of
‘indifferent’ copies of BBC
programming.
[20]
Copyright Law Review
Committee.
[21]
Implemented as the law of Australia in the Copyright Act 1912
(Cth).
[22]
Copyright Law Review Committee, para.
[24].
[23] ibid.,
para. [286].
[24]
ibid., paras
[282]–[283].
[25]
ibid., para.
[286].
[26]
Commonwealth, p. 1527 (Bowen). The provisions pertaining to sound recordings
attracted the most criticism. See also EMI Music Australia Pty Ltd v.
Federation of Australian Commercial Television Stations (1997) 74 FCR 485,
pp. 488–98 (Lockhart
J).
[27] See
Brennan.
[28] Sound
recordings, cinematograph films, television broadcasts, sound broadcasts,
published
editions.
[29]
Commonwealth, p. 1932
(Buchanan).
[30]
ibid., p. 1947
(Bryant).
[31]
ibid., p. 1928
(Snedden).
[32]
Sawyer, p. 12.
[33]
See Drahos.
[34]
Ampex sold the first Video Tape Recorder for US$50 000 in 1956.The first Video
Cassette Recorder was sold by Sony in the USA in
1971.
[35] In
response to local experimentation and in line with developments overseas, the
Commonwealth enacted the Wireless Telegraphy Act 1905 (Cth) which made
provision for the development of the wireless radio under strict government
control. Likewise later with the emergence
of television, the Television and
Broadcasting Act 1942 (Cth) regulated the provision of radio and television
broadcasting: Australian Heritage
Commission.
[36]
Commonwealth, p. 1938
(Duthrie).
[37]
ibid., p.
1937.
[38] ibid.,
p. 1947
(Bryant).
[39]
[1999] HCA 17; (1998) 195 CLR
158.
[40]
ibid., p. 163 (Gaudron, Gummow and Hayne
JJ).
[41] TCN
Channel Nine v. Network Ten [2001] FCA 108; (2001) 108 FCR 235; TCN Channel Nine v.
Network Ten [2001] FCA 841; TCN Channel Nine v. Network Ten [2002] FCAFC 146; (2002)
118 FCR 417; Network Ten v. TCN Channel Nine [2004] HCA 14; (2004) 218 CLR 273; TCN
Channel Nine v. Network Ten (No 2) [2005] FCAFC 53; (2005) 145 FCR
35.
[42] TCN
Channel Nine v. Network Ten [2002] FCAFC 146; (2002) 118 FCR 417, p.
420.
[43]
Copyright Act 1968 (Cth) s.
14.
[44] ibid., s.
103A.
[45] ibid.,
s. 103B.
[46]
Including ibid., ss 14, 24, 25, 87, 91,
99.
[47] TCN
Channel Nine v. Network Ten [2001] FCA 108; (2001) 108 FCR 235, p.
272.
[48] TCN
Channel Nine v. Network Ten [2002] FCAFC 146; (2002) 118 FCR 417, p. 422 (Finkelstein
J).
[49].
Network Ten v. TCN Channel Nine [2004] HCA 14; (2004) 218 CLR 273, p. 281 (McHugh ACJ,
Gummow and Hayne
JJ).
[50] Barron,
p. 203;
Handler.
[51]
Network Ten v. TCN Channel Nine [2004] HCA 14; (2004) 218 CLR 273, pp. 289–90
(McHugh ACJ, Gummow and Hayne
JJ).
[52] TCN
Channel Nine v. Network Ten (No 2) [2005] FCAFC 53; (2005) 145 FCR 35, p. 54 (Hely
J).
[53] Network
Ten v. TCN Channel Nine [2004] HCA 14; (2004) 218 CLR
273.
[54]
Schlag.
[55]
DiMaggio quoted in Lury, p.
63.
[56] There is a
lot of debate concerning the politics of the structural determinism of needs.
Communications and cultural studies suggest
a much greater richness to popular
culture than initially credited to it by Adorno and Horkhmeimer. See Adorno and
Horkheimer; Kellner;
Lee;
Slater.
[57]
Murdoch, cited by Bettig, p.
41.
[58] For an
overview of the relevance of these given technological change, see Goldsmith et
al.
[59] Lury, p.
59.
[60] ibid., pp.
54, 57.
[61]
Telstra Corporation v. Australasian Performing Right Association [1997] HCA 41; (1997)
191 CLR 140.
[62]
ibid., p. 156 (citing Luxmoore and Goddard LJJ in Ernest Turner Electrical
Instruments v. Performing Right Society [1943] Ch 167, pp.
175–6).
[63]
ibid.
[64] See
O’Regan et al.; Katz. The assemblage of audiences for advertisers also
gives rise to associated challenges for broadcasting
authorities such as
‘cash for comment’ incidents: see
Leiboff.
[65]
Australian Performing Right Association v. Canterbury-Bankstown League Club
(1964) 5 FLR 415; Rank Film Production v. Colin S Dodds [1983] 2
NSWLR 553.
[66]
Attorney General’s Department, p.
2.
[67] See
Bowrey.
[68]
Williams.
[69]
Murray.
[70] For
example, Copyright Act 1968 (Cth) s. 112E, Part III, Div. 4A—Acts
not constituting infringements of copyright in computer
programs.
[71]
Grossman, ‘Time’s Person of the Year: You’.
p24.
[72] Barlow;
Flew; Jenkins, Convergence
Culture.
[73]
McGuire and Slater. See also the Future of Music Coalition,
http://www.futureofmusic.org;
Fisher.
[74]
Copyright Act 1968 (Cth) Part V, Div. 2A—Actions in relation to
technological protection measures and electronic rights management
information.
[75]
ibid., Part V, Div. 2AA—Limitation on remedies available against carriage
service
providers.
[76]
See, for example, Jenkins, ‘Star Trek Rerun’; Tushnet;
Coombe.
[77]
Pelline.
[78]
‘Digital Pop
Star’.
[79]
Holahan.
[80]
Bohn.
[81]
Wang.
[82] For
example, some types of subscription-based gaming such as World Of Warcraft
are enormously successful despite various levels of user restrictions and
protections. Likewise users do still purchase regionally
encoded
DVDs.
[83]
Australian Consumers’ Association, Response to the Attorney
General’s Department Issues
Paper.
[84]
Electronic Frontier Foundation;
Indicare.
[85]
Gasser and
Begue.
[86]
Jobs.
[87]
Miller.
[88] Yacob,
quoted in Jenkins, ‘How Transmedia Storytelling Begat Transmedia
Planning’.
[89]
Grossman, ‘You. Time’s Person of the
Year’.
[90]
Yacob, quoted in Jenkins, ‘How Transmedia Storytelling Begat Transmedia
Planning’.
[91]
Jenkins, ‘Searching for the Origami Unicorn’, in Jenkins,
Convergence Culture, pp. 93–130. See also Nichols et
al.
[92] Balkin and
Noveck.
[93] For
example, by making ‘original’ animations utilising MMORPG characters
and settings.
[94]
Copyright Act 1968 (Cth) ss 47J, 109A, 110, 110AA, 111,
248D.
[95] ibid.,
ss 41A, 103AA.
[96]
ibid., s.
10(1).
[97] Those
content regulations are now falling away: see Given.
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