One of the bigger underground issues to do with copyright is the "right" of audience members to record a live concert. Rumours are that it is a "grey area". This grey area of the law was used to allow legal (for a few years) the distribution of live recordings in the Australian based "Unauthorised" series. That hole was closed (but I cannot find any mention of the series of recordings on the web except in bootleg trading lists).

Update: Newsgroup post from Herald Sun article in Jun 1995, the loophole was closed 1st July 1995. No explaination of what exactly the loophole was though. End Update

IANAL: The relevant area seems to be:

http://www.austlii.edu.au/au/legis/cth/consol_act/ca1968133/s248a.html#exempt_recording

"exempt recording" means:

[...]

(f) a direct or indirect cinematograph film of a performance made:
(i) for the purpose of, or associated with, the reporting of news or current affairs; or
(ii) for the purpose of criticism or review;
(fa) a direct or indirect sound recording of a performance, being a recording that is a fair dealing with the performance:
(i) for the purpose of criticism or review, whether of that performance or another performance; or
(ii) for the purpose of, or associated with, the reporting of news in a newspaper, magazine or similar periodical; or
(iii) for the purpose of, or associated with, the reporting of news by means of a communication or in a cinematograph film;

The way I read that is, it's legal to record the concert you are at in however way you see fit, as long as you write a review of that concert. It doesn't allow for distribution of that recording, but does allow you to make and keep that recording.

Outside of copyright, the venue has the right to prevent you disrupting the performace which may include requesting you do not use flash photography or set up elaborate, stage obstructing recording rigs. I believe the venue has the right to refuse entry for any reason. The band has the right to request the venue prevent recording.

It's easy for a venue to request you don't bring your DAT, Minidisc or Video camera or whatever into a venue. It's harder for them to request you leave your mobile in your car. These days mobiles record video and sound. Gigs of 2004+ will be remembered by the number of mobile phones being held above the heads of the crowd.

It won't be long before your regular consumer recording device (video and audio) will be so small it will be too difficult to detect and of fantastic quality. And it will be included in a device that can legitimately be carried into a venue. Like a mobile phone. Or a pacemaker.

Imagine preventing anything from being recorded if the "always on" life recording headsets as seen in David Brin's Earth ever became a reality...

We're really not very far from technology which will make 24 hour video recording trivial and inexpensive. Storage is getting larger and cheaper. Video camera technology is already cheap enough.

Imagine the privacy and security issues when the storage space is available cheaply enough to constantly record multiple streams of video and keep that video permanantly.

Woah... tangent...

The Attorney-General has opened up discussions on the topic of updating Australia's copyright laws to the US idea of "fair use". (via Slashdot)

The paper linked discusses the collision of the US DMCA (which we inherit via the Free Trade Agreement) and our lack of useable fair use laws.

Time to start writing letters.

Update:

Write to:

Ms Helen Daniels
Assistant Secretary
Copyright Law Branch
Attorney-General's Department
Robert Garran Offices
National Circuit
BARTON ACT 2600

They would prefer electronic:
michelle.tippett@ag.gov.au

Questions on the review should be directed to:
norman.bowman@ag.gov.au

Note your submissions will be made public (probably downloadable from the AG website) unless you specifically request it not to be. If you request your submission to not be published they would prefer you offered an edited public version.

End of Update

Briefly for the uninformed: It is illegal to convert a CD to MP3 in Australia. It is illegal to convert (a commercial) VHS to DVD. It is illegal to record TV (?unless it's a live broadcast?). I assume it is illegal to record the radio. It is legal to copy software for the purpose of backup. This exception does not exist for music / video.

Arguments for fair-use copying off the top of my head:

• Users must be allowed to "format change" their audio / video. The rate of format change (film > VHS > MPEG > VCD > DVD > BlueRay?HiDVD and vinyl > 8-track > tape > CD > SuperCD/DVD-Audio > PC based file) is increasing constantly, and ultimately the "format" is irrelevant. People are (or should be) paying to view the film / listen to the music, and only minimally for the plastic it's printed on. Soon we won't even be buying the plastic.
• In ten years time I'll ask you to go find a commercially available VHS player, Minidisc player, cassette tape player, VCD/SVCD/DVD player. I'll ask you now to go find an 8-Track, a Commodore 64, an older version of Windows Media Player.
• With end-of-copyright constantly being extended (now death + 70 years in Australia thanks to the Fair Trade Agreement) the risk of losing historic recordings is much increased if no legal method of keeping a copy of those recordings exists (this is particularly relevant for TV/radio broadcasts but also for rare commercial releases). Do we really expect that DVD you just bought to last 60ish+ 70 years? Ask any TV/radio station from 50 years ago how much of their broadcast they still have copies of.
• Libraries / Museums should be exempt from all copyright restrictions for obvious reasons. If the reasons aren't obvious, go to hell.