Two important Australian copyright cases: BitTorrent all you like, but don’t borrow a flute riff

It’s been a big week for Australian copyright law with two important cases decided.

First up we had the case of iiNet versus Roadshow Films. This case   saw mid-sized Australian ISP iiNet sued for by a federation of Hollywood movie studios and local broadcasters for copyright contraventions by its users, chiefly on BitTorrent. The case was always expected to have wide ramifications, as it called into question whether ISP’s would be responsible for the rampant illegal downloading of their users. The movie studios hired private detectives to track user downloads and then informed iiNet about the activity.

When iiNet refused to disconnect users, they sued, arguing thata iiNet had a legal obligation to stop users from illegal activity.  iiNet argued that it had no legal right under privacy law to snoop on what its users were doing,, and that in any case BitTorrent can be used for many legitimate activities.

iiNet won. In his judgment, Justice Cowdrey comprehensively demolished the Big Media case. “I find that iiNet did not authorise the infringements of copyright of the iiNet users,” he wrote, going on to point out that even if iiNet had done so, it would still “have been entitled to take advantage of the safe harbour provisions in Division 2AA of Part V of the Copyright Act if it needed to do so.” Translation: not only did iiNet not authorise the illegal downloading, it also enjoyed the “safe harbour” protections of the Copyright Act like any other ISP or telco. It’s a comprehensive slap-down for the copyright lobby.

And then there was the plagiarism case concerning Men at Work’s famous 1981 song “Down Under.”

This is one of the most famous songs in Australian contemporary music, selling millions and reaching No.1 in both US and Australian charts. I  vividly remember hearing it played endlessly as a child when Australia won the America’s Cup yacht race in 1983, for which it had become a kind of de facto national anthem.

The case involved the publishers of a song entitled “Kookaburra Sits in an old Gum Tree”, a well-known children’s ditty penned for the Girl Guides in the 1930s b y a woman named Marion Sinclair. But afteer Ms Sinclair’s death, the song was bought by music publisher Larrikin Publishing, who then sued in 2007 after the similarity in the two songs was noted in an ABC music quiz show, Spicks and Specks.  In a canny piece of copyright trolling, Larrikin argued that the flute riff in “Down Under” included two bars of the melody of “Kookaburra”, and that Larrikin was therefore owed a substantial part of the publishing and songwriting royalties of the hit song.

Now songwriter Colin Hay and publisher EMI stand liable for millions in back-royalties.

In a statement yesterday, Hay slammed  the decision, stating that:

“It is indeed true, that Greg Ham, (not a writer of the song) unconsciously referenced two bars of ‘Kookaburra’ on the flute, during live shows after he joined the band in 1979, and it did end up in the Men at Work recording.”

“It may well be noted, that Marion Sinclair herself never made any claim that we had appropriated any part of her song ‘Kookaburra,’ and she wrote it, and was most definitely alive, when Men at Work’s version of ‘Down Under’ was a big hit. Apparently she didn’t notice either.”

What’s new in the journal Industrial and Corporate Change?

I’ve been a busy boy lately researching a range of cultural industries topics, including the Australian screen industry and a theory of cultural innovation. So over the next week or so I’m going to be posting about some of my discoveries in these fields, in case any of you feel like checking out some of the fascinating research currently emerging in these areas.

Today, I’m going to be looking at Hyejin Yoon and Edward J. Malecki’s article “Cartoon planet: worlds of production and global production networks in the animation industry.” This article is brand new, published in the first 2010 issue of Industrial and Corporate Change [19(1):239-271], and looks at globalisation in the international animation industry:

As more animated films are produced, new “worlds of production” have emerged. The animation production system is distinct from film production, relying on different technologies and labor skills. Its globalization, therefore, has taken place differently, although both are structured by the global production networks of the media conglomerates. We present a framework for understanding the animation industry, its international division of labor, and its diverse markets, enabled by pools of artistic labor, growing demand, and the diffusion of production skills.

There’s a wealth of information in this long and detailed piece, but one graph in particular really took my fancy:

Animated feature film production, globally, 1917-2006. Source: Yoon and Malecki 2010.

More liquor licensing and music venues coverage

The controversy over liquor licensing regulation and its effect on small bars continues, with coverage in Melbourne’s Herald-Sun today. One of the interesting points – which I think sums up some of the issues of over-regulation in the sector – is the laws currently causing concern have actually been on the statutes since the 1990s. It’s just that they have only begun to be enforced now, in the wake of community concern about alcohol-fueled violence:

The rules covering late-trading venues with amplified music had been unchanged since the late 1990s. But the crackdown started in the middle of last year when a new compliance directorate, nicknamed “Sue’s Stormtroopers”, started work.

Removing the link between live music and a venue being classified as high risk would not involve a change to the law, Perring says.

Gigs, where people come together to share their love of music, are “exactly the kind of thing you want happening” in licensed venues, he says.

“People who go to see live music are part of a community, they’re there to see a band — and it’s generally all over by 1am.”

The Tote’s closure is unfortunate timing. After years of being hit by nightclubs, live music is having a renaissance.

“Considering all the woes of the record industry, the live industry in Melbourne is alive and well,” tour promoter and record company boss Michael Gudinski says.

“I have full respect for the police and Sue Maclellan trying to clean up the trouble, but live music venues, particularly the ones that support Australian music, aren’t the trouble places. Live music venues are completely different to the nightclub scene. They’re looking in the wrong places.”

Young says the new laws are hitting the Cherry hard.

“I might want to put on Spencer P. Jones on a Tuesday night to play for an hour and hopefully bring in 20 people who are music fans. You wouldn’t do that now because you have to pay security $35-$40 an hour, you have to have two of them working for a minimum of five hours,” he says.

“You’re in a scenario where the musician gets paid $200 and the security guard gets $500 — and you only expected to attract 20 people. So you close on Tuesday and close on Sunday.”

How news happens in Baltimore

Clark Johnson as newspaper editor Gus Haynes in The Wire. Source: HBO.

We’ve all seen the fifth season of The Wire, right? The gripping televisual novel explores the ins and outs of Baltimore’s news media, and how it feeds into the networked decay of this American Babylon.

Well, now we have the empirical data to back up David Simon’s claims about the vital importance  of news-gathering media organisations – partricularly local newspapers – to the media ecology.

In an excellent and timely study by the Pew Research Centre’s project for Excellence in Journalism, Pew researchers have tracked the origin and later re-reporting of six major stories in the mediascape of the US city of Baltimore – famously, the city depicted in The Wire.

They find that te bulk of major news continues to be reported by old-style print news reporters. Almost no new news is broken by blogs or new media outlets. As the study concludes:

• Among the six major news threads studied in depth—which included stories about budgets, crime, a plan involving transit buses, and the sale of a local theater—fully 83% of stories were essentially repetitive, conveying no new information. Of the 17% that did contain new information, nearly all came from traditional media either in their legacy platforms or in new digital ones.

• General interest newspapers like the Baltimore Sun produced half of these stories—48%—and another print medium, specialty newspapers focused on business and law, produced another 13%.

• Local television stations and their websites accounted for about a third (28%) of the enterprise reporting on the major stories of the week; radio accounted for 7%, all from material posted on radio station websites. The remaining nine new media outlets accounted for just 4% of the enterprise reporting we encountered.

• Traditional media made wide use of new platforms. Newspapers, TV and radio produced nearly a third of their stories on new platforms (31%), though that number varied by sector. Almost half of the newspapers stories studied were online rather than in print.

• There were two cases of new media breaking information about stories. One came from the police Twitter feed in Baltimore, an example of a news maker breaking news directly to the public rather than through the press. Another was a story noticed by a local blog, that the mainstream press nearly missed entirely, involving a plan by the state to put listening devices on buses to deter crime. A newspaper reporter noticed the blog and then reported on the story, which led the state to rescind the plan.

• As the press scales back on original reporting and dissemination, reproducing other people’s work becomes a bigger part of the news media system. Government, at least in this study, initiates most of the news. In the detailed examination of six major storylines, 63% of the stories were initiated by government officials, led first of all by the police. Another 14% came from the press. Interest group figures made up most of the rest.

You can see the situation graphically in the figure below. Bottom line: new media is still reproducing, not reporting. And that has serious consequences for our democracy.

The Pew Research Centre's data for which media outlet reported news on six major stories. Newspapers and local TV stations are overwhelmingly the major sources of news, especially compared to blogs and new media. Source: Pew Project for Excellence in Journalism

Unintended consequences: will digital TV make your wireless mic stop working?

Wireless microphones like these Sennheisers work using radio spectrum sandwiched between the domestic analogue TV channels. When the government sells off that spectrum in 2013, those mics will stop working.

There’s a fascinating article by Dominic White in Saturday’s Australian Financial Review about the looming crisis for Australia’s wireless microphone users.

Wireless mics, like the ones used by film crews, stage managers and rock musicians, work by using radio spectrum that is set to be sold off by the federal government (most likely to mobile phone companies) in 2013.

Why is that? The reason is that Australian TV is finally going digital. Digital TV uses far less spectrum than analogue TV, and the result is that the federal government can take back that lucrative spectrum to sell to the highest bidder. It’s an attractive proposition to telcos, who can use it for 4G mobile phones. The problem is, that old analogue spectrum used by the TV stations had small gaps between the channels, which wireless mics used for their transmissions. As White reports:

The proposals would mean that 85% of the 130,000 wireless audio devices used in Australia – which operate in the gap between TV stations – would be made obsolete, according to the Australian Wirelss Audio Group.

The Sydney Opera House alone could face a huge bill as a result of the change. The 200 wireless devices it uses, which cost about $10,000 per kit, would have to be replaced with microphones tuned to lower frequencies.

“We rely critically on wireless microphones,” technical director David Claringbold told the Weekend AFR.

“Our devices are in operation fro seven in the morning til midnight every day to make dramas, musicals and all kinds of performances run smoothly.”

The AWAG wants the federal government to use some of the windfall gain from the spectrum sale to compensate users. It estimates that “$32 billion of economic activity and 140,000 jobs in Australia” are reliant to some degree on wireless microphones.

I’m not  I agree with that figure, but hey, it will certainly make a big difference to audio hire firms, who will have to replace every single wireless Beta-58 and wireless guitar pickup in their rigs.

Neuroscience of music: why we like surprising melodies

From one of my favourite blogs, Jonah Lehrer’s The Frontal Cortex (and by the way, someone that smart should not be that good looking. No fair!) comes a post about a fascinating new piece of research on the neuroscience of music. As the authors write in their abstract:

In this study, we investigated melodic pitch expectations elicited by ecologically valid musical stimuli by drawing together computational, behavioural, and electrophysiological evidence. Unlike rule-based models, our computational model acquires knowledge through unsupervised statistical learning of sequential structure in music and uses this knowledge to estimate the conditional probability (and information content) of musical notes. Unlike previous behavioural paradigms that interrupt a stimulus, we devised a new paradigm for studying auditory expectation without compromising ecological validity.

What does all this mean? Lehrer explains:

The paper consists of a computational model and and an experiment. The model essentially demonstrated that statistical predictions based on our personal listening experience – because I listen to Bruce Springsteen, I’m able to predict the melodies of John Mellencamp – was much better at simulating the mind than a rule-based model, in which our expectations are fixed and inflexible.

The experiment was more compelling. The scientists measured the brain waves of a twenty subjects while they listened to various hymns. It turned out that unexpected notes – pitches that violated the previous melodic pattern – triggered an interesting sequence of neural events and a spike in brain activity …

There are two interesting takeaways from this experiment. The first is that music hijacks some very fundamental neural mechanisms. The brain is designed to learn by association: if this, then that. Music works by subtly toying with our expected associations, enticing us to make predictions about what note will come next, and then confronting us with our prediction errors. In other words, every melody manipulates the same essential mechanisms we use to make sense of reality.

The second takeaway is that music requires surprise, the dissonance of “low-probability notes”. While most people think about music in terms of aesthetic beauty – we like pretty consonant pitches arranged in pretty patterns – that’s exactly backwards. The point of the prettiness is to set up the surprise, to frame the deviance. (That’s why the unexpected pitches triggered the most brain activity, synchronizing the activity of brain regions involved in motor movement and emotion.)

Fantastic stuff. ScienceBlogs is going from strength to strength at the moment.

First The Tote, now the Arthouse: Melbourne liquor licensing crackdown claims another casualty

The Arthouse Hotel in North Melbourne. The low-budget venue has announced it will not be renewing its lease, in part owing to extra security costs imposed by the Victorian government

In sad but utterly predictable news, another low-cost Melbourne rock pub has announced it will be shutting its doors.

As reported in Mess + Noise today, The Arthouse Hotel, a low-budget live music venue in North Melbourne, has announced it will not be renewing its lease.

In a statement to M+N, manager Melanie Bodiam, whose family has run the venue since its inception, said the venue has suffered from the same Liquor Licensing regulations that contributed to The Tote’s demise. “The Arthouse is affected by the new liquor licensing laws that kicked in on the 1st of January this year. As a consequence we are now licensed till 1am opposed to 3am as before. I’m sure you can imagine the impact of loss off revenue and staffs wages.”

A frosty relationship with The Arthouse’s current landlord has also been a major factor in the family’s decision not to renew the lease.

Andrew Crook from Crikey has more coverage. Crook claims that Victorian Labor MPs including The Tote’s local member, Richard Wynne, are so worried about the potential voter backlash over the issue that they are seeking to modify tough new security regulations imposed by Liquor Licensing Victoria:

As hallowed punk-rock incubator The Arthouse announced it was going the way of The Tote and shutting its doors next year, the owner of several live music venues, and a leading candidate to take over The Tote’s license, Jon Perring, told Crikey he will meet next week with Victorian gaming minister Tony Robinson to thrash out a new deal that would see security linked to a venue’s alcohol sales as opposed to current laws which are triggered by the presence of “live or amplified music”.

“I’ll be seeing Tony Robinson. It’s a no-brainer to fix, it just requires the commission to de-link security compliance with live music and relate it to alcohol consumption,” Perring said.

“There’s no relationship between live music and violence. If we can’t fix this problem there’s no way of saving the Tote. It’ll be hasta la vista baby and we’ll be back to watching Lateline.”

A major factor in the demise of The Tote under licensees Bruce and James Milne was a doubling in security expenses from $60,000 to $120,000 a year after the venue was issued with a a new set of demands by Liquor Licensing Victoria chief Sue Maclellan.

[...]

The issue of live music venues is considered a serious election issue by the state government, especially in marginal inner-city electorates that could see sitting members skittled by the Greens. The member for Richmond, Richard Wynne, is sitting on a tenuous 3.1% buffer in his electorate, which includes The Tote. The electorate of Melbourne, which includes The Arthouse, is held by Bronwyn Pike by an even slimmer margin of 1.9%.

The level of interest in the issue in inner-suburban Melbourne can be gauged by the media attention focussed on The Tote’s owner, millionaire Computershare Chairman Christopher Morris.

”It’s amazing, it really is,” Mr Morris told The Age’s Mark Hawthorn. ”There’s more interest in a pub in Collingwood than the performance of Computershare.”

More on The Tote closure

Well-wishers line up outside The Tote hotel, 5.30pm, Sunday 17th January. The line strecthed several blocks. Image: Sarah-Jane Woulahan.

Yesterday, more than 2000 people attended the public protest over the closure of The Tote hotel due to the vastly increased licensing costs mandated by Liquor Licensing Victoria. I was there, as you can see above. The protest was peaceful but passionate, with many placards and some speeches, all making the point that live music was being penalised over so-called “high risk” provisions in new licensing laws that bear no correlation with the actual safety record of Victorian music venues.

But don’t expect the Victorian government to take notice. Showing her typical tone-deaf approach to media management, Liquor Licensing Victoria’s Sue McLellan opted to attack the Tote’s Bruce Milne in an interview with the Herald Sun. Asking for a meeting with Milne to discuss mediating an issue that has quickly mushroomed into a public relations disaster was clearly not on McLellan’s agenda.

Let’s get personal here. The salary for a senior public servant like McLellan would comfortably cover the annual running costs of a low-profit venue like the Tote. We can’t expect her to understand the appeal of sticky carpet or rock music, but wew can ask her to get out of her air-conditioned office and actually engage with the issues at hand. Or maybe not.

Today’s Crikey has an article by Andrew Crook with further details on the Tote story. Crook reveals that a consortium of small bar licensees have offered to take over the license from Bruce Milne, with Milne reported interested:

A trio of white knights look set to assume control of iconic Melbourne rock pub The Tote, which was scheduled to close its doors for the last time today.

In a prima facie offer posted late this morning on music website Mess and Noise, the current proprietors of The Old Bar, and the former managers of After Dark in High Street Thornbury, wrote of their willingness to assume the licence, following a public plea from current proprietor Bruce Milne.

“Joel [Morrison], Singa [Unlayiti] and myself would dearly love to sit down with you at some point and talk about this further. As you know we are running a very similar venue (although on a smaller scale) with very similar licensing.

“I think that if there is a baton to be passed along that the three of us would consider ourselves a sincere and reasonable group of guys to accept responsibility of The Tote,” wrote Liam Matthews on the online forum. Milne responded minutes later:  ”You guys would run it with the love and respect it deserves. If you can find a way, I’m there for you.”

Milne, a stalwart of the Melbourne music scene, had previously spruiked for a new licensee to keep the venue open: ”If someone can work out a way to keep the place open and deal with liquor licensing, I will work with them to make it happen. But it needs to be the Tote, not some lame-o version.”

Milne told Crikey that he would be “happy” if the trio took over the venue but that it would need to be removed from the “high-risk” category that has led to  liquor licensing fees and compliance costs skyrocketing.

In an article in this morning’s Australian Financial Review, The Tote’s millionaire landlord, Computershare mogul Chris Morris, said he was happy to keep the venue running under a new licensee. Matthews told Crikey he had contacted Morris but was yet to receive a response and a jump in running costs could still see the doors closed for some time yet.

An increase in liquor licensing fees of about $1600 was dwarfed by a requirement in Milne’s licence to have two security guards stationed at the Tote’s doors at all times — a near-doubling of his  current annual expenses of $60,000. This came on top of the installation of “quality” CCTV cameras. Attending the Victorian Civil and Administrative Tribunal to revert the licence away from the high-risk category would slug Milne with about $15,000 in lawyers’ fees.

The “high-risk” ruling puts the venue in the same category as several King Street nightclubs, leading to calls for a more nuanced approach from Liquor Licensing Commissioner Sue McLennan.

Well-funded art museums cry poor, again

Christopher Menz has taken his bat and ball and gone home. So why should we care? Source: Fairfax.

The news that the Art Gallery of South Australia’s director, Christopher Menz, has declined a contract extension because the South Australian government has not increased the gallery’s funding has brought predictable squeals of outrage from the champions of the entitlement culture at Australia’s large cultural institutions.

Now art critic John McDonald has weighed in with a mendacious opinion piece in the Fairfax newspapers in which he claims that Menz’ dummy spit “represents one of the few occasions a senior figure in an Australian public art museum has shown the courage of their convictions.”

Was Menz asking for an outrageous sum of money? He wanted only another million. Over the past two years, even allowing for its slender budgets, the gallery has initiated important shows such as The Golden Journey, Hans Heysen, and Misty Moderns. There could be no questioning the quality of the staff’s work and commitment.

Well, there are obvious questions about at least one staff member’s commitment. The director has effectively resigned.

But what really annoys me about these kinds of articles is the utter detachment they show from the on-the-ground conditions in which actual working Australian artists ply their trade. Recall that the average Australian visual artist can’t even earn a wage above the poverty line from his or her art. Meanwhile, art galleries spend millions on acquiring thhe masterpieces of dead foreign artists.  ”Only another million” writes McDonald, without realising that this is by no means a trivial sum in terms of funding for individual visual artists.

Actually, the South Australian government injected more than $2 million in recent years to pay for renovations, but McDonald doesn’t let that get in the way of his spray,  dismissing it as merely about “air conditioning” – which I would have thought was a rather significant investment in a city where summer temperatures regularly get into the 40s.

I’m sorry, but McDonald and Menz are nothing but whingers. Let’s examine the facts. Menz enjoyed a healthy salary to run a major cultural institution with a budget that would comfortably exceed all but a handful of Australian arts organisations. If this wasn’t commensurate with his talents and abilities, he is free to take his bat and ball and go home. But let’s not mourn his departure. The board of the AGSA should immediately get on with the business of appointing a young and dynamic director who can take the institution forward. For his part, McDonald should stop whinging.

Jane Rankin-Reid, in a devastating quote I have often cited, had this to say on the issue way back in 2002:

“It is time Australian visual arts bureaucrats faced the fact that although they are professionally dependent on artists for their raison d’etre, the guy in the paint-splattered suit may never enjoy quite as high a standard of living as an arts management desk jockey. Ideally, artists are here to promote these and other truths, but the politesse of the Australian arts funding system often muffles these dangerous voices in our society.”

The Tote closes: Licensing over-regulation kills another iconic venue

Melbourne's iconic Tote Hotel is shutting due to liquor licensing over-regulation. Source: Mess and Noise.

It had to happen. The moral panic over street violence in Australian cities has resulted in a indiscriminate crack-down by liquor licensing regulators.

Now that crack-down is destroying live music and arts venues, despite the fact that these venues are in almost all cases non-violent and low-risk. Last year, it was Sydney’s Houptoun Hotel, one of the city’s most important small venues for independent bands. The Hopetoun was merely the latest of many long-dead Sydney music venues. Today, Melbourne’s iconic Tote Hotel has gone the same way, pushed under by high fees and over-zealous licensing regulations meant to stem crime in large nightclubs and hotels.

The Tote is a special piece of Melbourne’s rock music scene (chronicled in low-budget documentary Sticky Carpet). I was there watching Toxic Lipstick on Monday night. A small room run on a low cost, low profit basis, the venue has seen many famous bands get their first opportunity. Just as importantly, it also incubates a significant audience for experimental and innovative new music. I’ll be there on Sunday night for last drinks.

As the Tote’s Bruce Milne sadly records in his last press release, the venue is very safe but is still being levied a huge fee by the Victorian liquor licensing authorities as a supposedly “high risk” venue:

I can’t afford to keep fighting Liquor Licensing.  The “high risk” conditions they have placed on the Tote’s license make it impossible to trade profitably.  I can’t afford the new “high risk” fees they have imposed. I can’t afford to keep fighting them at VCAT.  I can’t renegotiate a lease in this environment.

So, come into the Tote this weekend to say farewell to the sad staff and to feel the sticky carpet for the last time.

I don’t believe the Tote is a “high risk” venue, in the same category as the nightclubs that make the news for all the wrong reasons.  Despite being on a rough little corner of Collingwood, the Tote has had very, very few incidents.  As a local police officer once said, “The Tote’s the quietest pub in the area.” (!).

It’s not dumb luck that the Tote has escaped serious violence.  I believe the business has been run responsibly.  People don’t come to the Tote to fight.  They come because they have a passion for music and love to be in an historic venue that reeks of that same passion.

Vale The Tote.