Tag Archives: #copyright

Personal vs Public: Rethinking Privacy

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An incident I recently witnessed in my neighbourhood has caused to me to rethink how we should be defining “privacy”. Data protection is one thing, but when our privacy can be compromised via the direct connection between the digital and analog worlds, all the cyber security in the world doesn’t protect us against unwanted nuisance, intrusion or even invasion of our personal space.

Pressefotografen mit KamerasScenario

As I was walking along the street, I saw another pedestrian stop outside a house, and from the pavement, use her smart phone to take a photograph through the open bedroom window. Regardless of who was inside, and irrespective of what they were doing (assuming nothing illegal was occurring), I would consider this to be an invasion of privacy.

For example, it would be very easy to share the picture via social media, along with date and location data. From there, it could be possible to search land registries and other public records to ascertain the identity of the owners and/or occupants. And with a little more effort, you might have enough information to stalk or even cyber-bully them.

Privacy Law

Photographing people on private property (e.g., in their home) from public property (e.g., on the street outside) is not an offence, although photographers must not cause a nuisance nor interfere with the occupants’ right of quiet enjoyment. Our current privacy laws largely exclude this breach of privacy (unless it relates to disclosure of personal data by a regulated entity). Even rules about the use of drones are driven by safety rather than privacy concerns.

Since the late 1990’s, and the advent of spam and internet hacking, there have been court decisions that update the law of trespass to include what could be defined as “digital trespass”, although some judges have since tried to limit such actions to instances where actual harm or damage has been inflicted on the plaintiff. (Interestingly, in Australia, an act of trespass does not have to be “intentional”, merely “negligent”.)

Apart from economic and financial loss that can arise from internet fraud and identity theft, invasion of privacy via public disclosure of personal data could lead to personal embarrassment, damage to reputation or even ostracism. (In legal terms emotional stress falls within “pain and suffering”).

Data Protection Law

The Australian Privacy Principles contained within the 1988 Privacy Act apply to government agencies, private companies with annual turnover of $3m or more, and any organisations trading in personal data, dealing with credit information or providing health services. There are specific provisions relating to the use and misuse of government-derived identifiers such as medical records and tax file numbers.

The main purpose of the privacy legislation is to protect “sensitive” information, and to prevent such data being used unlawfully to identify specific individuals. At a minimum, this means keeping personal data such as dates of birth, financial records or hospital files in a secure format.

Some Practical Definitions

The following are not legal definitions, but hopefully offer a practical framework to understand how we might categorise such data, and manage our obligations towards it:

“Confidential”

Secret information that must not be disclosed to anyone unless there is a legal obligation or permission to do so. (There are also specific issues and exceptions relating to “classified information”, public interest matters, whistleblower protection and Freedom of Information requests.)

“Private”

Information which is not for public or general consumption, although the data itself may not be “confidential”. May still be subject to legal protection or rights, such as the right of adopted children to discover the identity of their birth parents, or the right of someone not to be identified as a lottery winner.

“Personal”

Data that relates to, or can specifically identify a particular individual. An increasing issue for Big Data, because data that otherwise resides in separate locations can now be re-connected using triangulation techniques – scrape enough websites and drill down into enough databases, and you could probably find my shoe size.

“Public”

Anything that has been published, or easily discoverable through open search or public database retrieval (but, for example, does not include my past transactions on eBay unless I have chosen to disclose them to other users). My date of birth may be a matter of record, but unless you have authorised access to the relevant database or registry, you won’t be able to discover it and you certainly shouldn’t disclose it without my permission.

Copyright Law

One further dimension to the debate is copyright law – the ownership and related rights associated with any creative works, including photographs. All original content is copyright (except those works deemed to be in the “public domain”), and nearly all copyright vests with the person who created the work (unless they have legally assigned their copyright, or the material was created in the course of their employment).

In the scenario described above, the photographer would hold copyright in the picture they took. However, if the photograph included the image of an artwork or even a framed letter hanging on the wall, they could not reproduce the photograph without the permission of the person who owned the copyright in those original works. In some (limited) situations, a photograph of a building may be subject to the architect’s copyright in the design.

Curiosity is not enough justification to share

My personal view on all this is that unless there is a compelling reason to make something public, protecting our personal privacy takes precedent over the need to post, share or upload pictures of other people in their private residence, especially any images taken without the occupants’ knowledge or permission.

Just to clarify, I’m not referring to surveillance and monitoring by the security services and law enforcement agencies, for which there are understandable motives (and appropriate safeguards).

I’m saying that if we showed a little more respect for each others’ personal space and privacy (particularly within our homes, not just in cyberspace) then we might show a little more consideration to our neighbours and fellow citizens.

Next week: It’s OK to say “I don’t know”

A couple of No-No’s for content marketers

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If you are just getting started in content marketing, or if social media is still a bit of a novelty for your organisation, there are a couple of things you should definitely avoid when attempting to use third-party content for your own promotional purposes: don’t misappropriate, and don’t misrepresent.

All marketers will be alert to false, deceptive or misleading advertising. More experienced content developers should also understand legal issues such as plagiarism, copyright infringement, passing-off and libel. However, even seemingly innocent and well-intentioned references made to third-party content may inadvertently border on unconscionable conduct.

Last week, I had the rather disturbing experience of a company attempting to use my blog to promote a service, and in a way that not only implied I was endorsing that service, but also suggested that my blog was somehow the reason why customers should sign up for it.

I found this problematic for three reasons:

First, I had no knowledge of or connection with this particular service, and the promotional message gave the impression I was endorsing it, which was obviously misleading, and it quoted my article out of context. At an extreme level, if I ever wrote a blog about the “10 reasons why I take public transport”, and then a political party co-opted my content to say “10 reasons why you should vote for our transport policy”, that would be misappropriation (of my content) and misrepresentation (of my views).

Second, even though the service referred to was being offered for free, if the company had managed to generate new clients via this particular campaign, there’s no direct benefit to me or my business, but lots of benefit to the company and/or its partners. In this increasingly self-directed, interconnected and collaborative environment, it’s important to make sure we are all “paying it forward” in a constructive and mutually beneficial way. (I have no problem with receiving a referral fee or a direct benefit in kind if my efforts have been instrumental in securing new customers for your business!)

Third, I am fortunate that a number of my blog articles have been re-syndicated via social media and other channels. In writing about third-party products and services, I am very careful not to endorse specific businesses or brands, other than to mention names (and link to relevant sites). Where I am providing criticism, I endeavour to do so under the auspices of “fair comment”. This is important when establishing credibility with an audience: that my content is seen to be authentic, that I demonstrate awareness about the purpose and context of my blog, and that I attribute whenever I am referencing or citing third-party content. (See an earlier blog I wrote on this topic) But, if in doubt, always ask the content owner in advance before linking, referencing, quoting, attributing or re-contextualising their content.

Finally, if I can be of any assistance in relation to your own content marketing, please let me know via this site.

Publishers’ Choice: Be a Victim, or Join the Vanguard?

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I recently posted a blog about saving the Australian publishing industry, prompted by some research I was doing on government-sponsored initiatives, notably EPICS and BISG. This generated a couple of (indirect) responses, one from the Department of Industry itself, the other from a long-time colleague in the industry. More on these later.

The future of publishing - circa 2000....

The future of publishing – circa 2000….

But first, some more industrial archeology, by way of demonstrating that book publishers are not shy about new technology – remember the first electronic ink? When I was working at the Thomson Corporation in the late 1990s, we were given access to a prototype version of what we would now recognise as an e-reader. It was about the size and thickness of a mouse pad but less flexible, and could only hold a small amount of data in its memory (content was uploaded via an ethernet cable). It was described as the future of book publishing, and was predicated on the idea of portability (it could be rolled up like a newspaper if the screen was thin and pliable enough), and updating it with new content whenever it was (physically) connected to a computer or the internet.

However, whatever their apparent appetite for new technology, publishers struggle to adapt their business models accordingly, or they are fixated on “old” ways of monetizing content, and locked into traditional supply chains, archaic market territories (geo-blocking), restrictive copyright practices and arcane licensing agreements; and unlike other content providers (notably music, TV and newspapers which have shifted their thinking, albeit reluctantly) the transition to digital is still tied to specific platforms and devices, unit-based pricing and margins, and territorial restrictions.

Anyway, back to the future. In response to my enquiry about the outcome of the BISG initiative, and the creation of the Book Industry Collaborative Council (BICC), the Department of Industry offered the following:

“A key outcome of the BICC process was to have been the establishment of a Book Industry Council of Australia, an industry-led body based on the residual BICC membership that would come to be a single point of policy communication with government, though following its own reform agenda in the identified areas and unsupported by any taxpayer funding. Terms of Reference and so forth were drawn up but as nearly as we can ascertain from media monitoring and contacts, the BICA was never formed. It appears the industry is waiting to ascertain what the current government’s policy priorities might be, as expressed in the outcomes of the current Commission of Audit and Budget, before possibly resurrecting the BICA concept and/or the policy issues identified in the BICC report.” (emphasis added)

My read on this is that the industry won’t take any initiatives itself until it knows what the government might do (i.e., let’s wait to see if there are any handouts, and if not, we can plead a special case about the lack of subsidies/protection and the threat of extinction…).

This defeatist attitude is not just confined to Australia – my former colleague recently attended the 2014 Digital Book World Conference in New York. He commented:

“I was disappointed to see the general negativity of the publishing industry and the “victim” like mentality – also the focus on the arch-enemy – AMAZON! I see great opportunities for content – but companies have to get their head around smaller micro transactions and a freemium model. Big publishers are “holding on” to margins – it’s a recipe for disaster – [but] I think we can become small giants these days.”

There are some signs that the industry is taking the initiative, and even grounds for optimism such as embracing digital distribution in Australia, moving to a direct-to-consumer (“D2C”) model in the USA, and new approaches to copyright and licensing in the UK.

The choice facing the publishing industry is clear: continue to see itself as a victim (leading to a self-fulfilling prophecy of doom and extinction), or become part of the vanguard in developing leading-edge products and services for the digital age.

Amazon finally comes to Australia; local retailers still want government action on sales tax

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A short (and seasonal) post this week, as everyone starts easing off for the holidays.

It may just be coincidence, but about the same time Amazon launched their new Australian website local retailers renewed their campaign to lower the $1,000 sales-tax exemption for online purchases from overseas retailers. And both events came at the start of the Christmas shopping season….

Obviously too early to say which way this will go, but here are a few personal observations:

First, the local Amazon site is limited to e-books, games and Android apps. So, no access to music, television or film content (digital or physical), no sales of print books and no Amazon marketplace. For these products and services, customers are directed to the US site. (Previously, the dormant Amazon.com.au domain name referred customers to the UK site.)

[Note: neither the US nor the UK sites allow overseas customers to buy mp3 content, but they can download digital music via Amazon’s AutoRip service when purchasing physical goods – confused? Me too….]

Second, prices for e-books on Amazon’s Australian site appear to be comparable to the US store, and presumably include local sales tax (GST) to keep on-side of the local real world and online retailers (as well as the ATO, of course).

Third, the general consensus is that if the $1,000 threshold was lowered or even abolished, the amount of sales tax to be collected would be more than outweighed by the additional costs of processing, administration and remittance (which would likely be passed on to local consumers at a “cost-plus” rate by overseas online retailers).

Fourth, many local retailers who voice their opposition to the $1,000 tax-free exemption fail to understand some of the reasons why local shoppers prefer to buy from overseas online retailers:

1. Price – even if overseas sales attract the 10% GST, in some cases this would still be cheaper than buying locally (especially so when the A$ was above parity with the US$). For example, from time to time, Amazon’s UK store offers free shipping on physical goods to Australia….

2. Choice – many products available from overseas online stores just aren’t available in Australia. This is primarily due to geo-blocking, confusion over local distribution rights, and simple lack of interest in stocking some items for the local market

3. Service – from recent personal experience, buying from a local online retailer took much longer than buying the same product from an overseas site, because the supply chain logistics were woefully inept.

[Note: As a separate but related example, I recently ordered a new iPhone 5S direct from Apple’s local website, and received it within 3 days, including a weekend; whereas my telco provider – which prides itself on its on-line business model and customer service standards – took more than 2 weeks to send me a new nano SIM card….. I had also been told by a couple of local Apple re-sellers that it would take 3-4 weeks to order the new phone, unless I took out a new mobile plan with them – which may say more about Apple’s trading policies than the resellers’ business operations.]

My advice to local bricks and mortar and even some online retailers is to look at their own limitations before insisting that the government amend the GST-free threshold on overseas online purchases.

As for Amazon, I wish them well in developing their local service. Much has been made of the stated intention to focus on Australian titles, and the opportunity for local authors to self-publish via Amazon. But already there have been some rumblings that this new site may cannibalize Kindle sales made via some of Amazon’s local retail channel partners.