Open Source Industry Australia

The Senate is soon due to debate the provisions of the Copyright Bill 2006.

No changes are needed to the Copyright Act to support either digital publishing, or online service delivery. What is needed is less protection and more competition. OSIA members have been digitally publishing their intellectual property for several years. Some OSIA members rank among the most successful digital publishers in the world. They publish across the spectrum, from low value works to works with an estimated value in the billions of dollars. Business is booming. It is the model of the future. Only this month we saw Microsoft, after years of active and forthright resistance, throw their hat into the open source ring, announcing a partnership worth hundreds of millions of dollars with a leading open source supplier.

Our members' success has not come about by badgering the Government for changes to the Copyright Act. It has not come about by playing coy on digital publishing until the rules have been changed in their favour. They got there not by lobbying and complaining, but by getting their brains going, rolling their sleeves up, and getting their hands dirty.

The result is the open source model. The model decries reliance on expensive and inefficient distribution chains. The brilliant innovation of the model is in making the internet work for you, not against you. Much like viral marketing, it harnesses its own customers to maximise product penetration. If a customer likes our software we encourage them to give it away to others. All we ask that they comply with some notification and publication requirements (such as distributing the source code along with the object code). From time to time these distributors get the licensing requirements wrong. This usually occurs where they publish incompatible products together.

"They're honest people, not pirates. If they get the licensing wrong, we want to help them get it right next time. We don't want them slapped with a fine for thousands of dollars. We don't want to waste the police's time, the court's time and the taxpayer's money," said MySQL Engineer Arjen Lentz*, "It's ridiculously heavy handed. We didn't ask for this, we don't want it. If enforced it will damage goodwill with customers and with the broader community. The last thing we want is to be as reviled as the other copyright holder bodies."

Unfortunately, despite its obvious success, the model of the future is being tethered to the past. The strict liability provisions in the Act are very regrettable 'anti-innovation'. "These provisions basically mean the Government will sue our customers when they make a mistake, no matter how innocent. Show me a business which sues its customers and survives," said OSIA director Brendan Scott, "Whether someone should be sued for a technical infraction should be our decision and it should be a civil sanction. We don't want the Government making those decisions for us. It's effectively mandating our business model."

Should someone repeatedly ignore the licensing requirements, or if they're deliberately engaging in a course of conduct it will be clear that their infringements aren't innocent. It is appropriate for criminal sanctions to apply and the current laws will catch them. The existing Act has that flexibility built in. OSIA supports the modernisation of the offence provisions by making them consistent with The Criminal Code, although the offences with a "negligence" fault element would be more sensible with a fault element of "recklessness". The strict liability provisions have no place in the revised Act.

"We don't know what's motivating these changes. It's not good business, it's certainly not common sense. It looks like it's just ideology. We ask the Parliament to stick to helping business and to say 'no' to those pushing this ideology," said Scott.

Media Inquiries:
Brendan Scott, Director,
brendan@osia.net.au
0414 339 227.

About OSIA
OSIA is the national industry body for Open Source within Australia. We exist to further the cause of both Free and Open Source Software (FOSS) in Australia and to help our members to improve their business success in this growing sector of the global Information and Communication
Technology (ICT) market. For more information about OSIA please visit http://www.osia.net.au/

Notes:
* MySQL AB is a member of OSIA. Arjen Lentz is a director of OSIA.

While the strict liability offences are subject to a defence of "mistake of fact", this is of cold comfort. Many people would not even turn their mind to the issue. Moreover many licensing issues are not questions of fact, but of law.