At IP Whiteboard, we’re awarding the Greens Party the best named IP Bill of 2013, ergo, the Copyright Legislation Amendment (Fair Go for Fair Use) Bill 2013 (Fair Go Bill), which was introduced in the Senate on 26 June 2013.

A political stoush over copyright reminds us that those at the apex of our legislature care about IP law. [Eds: Happy sigh!]. However, one can’t help speculating whether an independent Bill, sitting separately from the recent work of the Australian Law Reform Commission (ALRC) Inquiry into copyright, will meet with success. Let’s have a look at what the Fair Go Bill is intended to achieve.

First, the overall sentiment of the Fair Go Bill is expressed in the Second Reading speech:

Australian copyright law is out of date, inflexible, unnecessarily complex, imbalanced and virtually blind to digital communication technology such as smartphones used by three out of four Australian adults.

Secondly, the Greens Party is sympathetic to an open source model of information exchange on the Internet. The changes to the Copyright Act proposed in the Fair Go Bill are largely in keeping with this approach:

  • The Fair Go Bill introduces an exception to the circumvention prohibition (i.e. getting around software or devices that protect copyright material from being accessed) by the visually impaired or for institutions that circumvent in order to provide the work to the visually impaired.
  • The Fair Go Bill aims to provide a “safe harbour” for universities, libraries, schools, cultural institutions, so that they are not liable for how people might use content that is available on their servers. The Fair Go Bill does so by inserting a new and broad definition for “service provider”, and then replacing some references in the existing safe harbors “carriage service provider (eg in the s 116AG safe harbour) with the new term “service provider”.
  • Geocodes are codes on films, computer games and software that prevent the copyright material from being played outside a particular “zone”, such as Australia. The Greens consider that this enforces different price conditions for Australian consumers. The Fair Go Bill changes the definitions of “access control technological protection measures” so that it applies where geographic market segmentation enforces a different price for different geographical regions.
  • Introduces a fair use exception, which is intended to shift Australian law to the US model of “fair use” and technological neutrality.

The Senate referred the Fair Go Bill to the Environment and Communications Committee for inquiry and report. Interested persons can make submissions to the Senate Committee online by 31 August 2013. The Senate Committee is due to report on the Bill on 3 October 2013.

But what about the ALRC Inquiry and proposals on fair use?

The introduction of a fair use exception into the Fair Go Bill is remarkable, mainly because it is proposed that this occur “in parallel” to the high profile work of the ALRC into this very issue (refer Second Reading Speech of Senator Ludlam).

The fair use proposal in the Fair Go Bill and the ALRC Discussion Paper are both similar and different. They contain the same list of “fairness factors”, but contain a different list of purposes. The Fair Go Bill proposal the examples of “reproduction in copies or phonorecords or by any other means, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research” and would not repeal the fair dealing exceptions. The ALRC proposal includes a list of “illustrative purposes” including research or study, criticism or review, parody or satire, reporting news, non-consumptive, private and domestic, quotation, education and public administration.

How these differences might be reconciled has not been addressed by those behind the Fair Go Bill.

But what about all the other inquiries on these issues?

Of the other changes proposed by the Fair Go Bill, two are currently the subject of Australian consultation processes, and the third is the subject of a recent WIPO Treaty. Yet the existence of these other concurrent developments has not been addressed in the public speeches promoting passage of the Bill.

Specifically:

  • There is a current consultation process being undertaken by the Attorney General’s Department on the safe harbour provisions, Revising the Scope of the Copyright ‘Safe Harbour Scheme’ (see our previous post here).
  • Geocodes and the TPM in the Copyright Act are currently being considered in the IT Pricing Inquiry that is being undertaken by the Standing Committee on Infrastructure and Communications.
  • On June 27, more than 150 countries (including Australia) signed the Marrakesh Treaty to Facilitate Access to Published Works for Persons who are Blind, Visually Impaired, or otherwise Print Disabled (here) at the Marrakesh WIPO conference. The treaty will allow signatories to make exceptions to copyright infringement that enable the creation of copies of written material in formats that are accessible to visually impaired people (e.g. braille or talking books). It is presently not clear whether the Fair Go Bill’s exception for circumvention by the visually impaired meets, or is intended to meet, the requirements of this Treaty.

Whether the passage of the Fair Go Bill can proceed smoothly in light of these concurrent developments is an area of some speculation.