The Australian Law Reform Commission (ALRC) released on 20 August 2012 the first consultation paper for its inquiry into ‘Copyright and the Digital Economy’ (the Issues Paper). The closing date for submissions is 16 November 2012.
In very general terms, the terms of reference focus on exceptions to copyright, and whether they are adequate and appropriate in the digital economy, as well as statutory licences. In particular, the Issues Paper seeks submissions on whether further exceptions should:
- recognise fair use of copyright material;
- allow transformative, innovative and collaborative use of copyright materials to create and deliver new products and services of public benefit; and
- allow appropriate access, use, interaction and production of copyright material online for social, private or domestic purposes. The Issues paper deals with the broad range of potential discussion by posing 55 questions on which the Inquiry invites submissions. Some of the key issues and questions raised by the Inquiry are set out below.
Fair Dealing Exceptions, Fair Use & Quotes
The Copyright Act currently provides a number of specific fair dealing exceptions, including for the purposes of research or study, criticism or review, parody or satire, and reporting news.
The Issues Paper asks what problems, if any, are there with these exceptions in the digital environment. In particular, the Issues paper seeks submissions on how the fair dealing exceptions could be simplified such as, for example, a broad exception similar to a US-style fair use exception.
The Issues Paper also asks whether there should be a fair dealing exception for the purposes of quotes provided certain conditions are met.
Copying for Private Use
The ALRC is seeking submissions as to whether the private copying exceptions in the Copyright Act need to be amended or expanded. The exceptions include format shifting, time shifting and backup and data recovery.
Specific exceptions related to format shifting of books, photographs and sound recordings (and other works) were introduced into the Copyright Act in 2007 on the basis that the copy made was by the owner and the original copy was not an infringing copy. These sections are complex and submissions have been invited on whether these exceptions should be simplified and if so, on what basis.
A time shifting exception was also introduced into the Copyright Act in 2007 and provides for an exception to the making a film or sound recording of a broadcast for private or domestic use by watching or listening to the music at a later time. Given that is has now been decided that a broadcasting service that makes available television and radio programs by the Internet is not a broadcasting service for the purposes of the Broadcasting Services Act, the ALRC is seeking submissions as to:
- whether the time shifting exception in the Copyright Act should be amended to include content made available using the Internet or IPTV; and
- how such an exception should operate in relation to a cloud service or any other new technological copying services.
Finally, the ALRC is also seeking submissions as to whether Australians should be entitled to copy and store their own private collections of material protected by copyright for back up purposes and for data recovery purposes, and if so, how the Copyright Act should be amended to permit this. Section 47C of the Copyright Act currently permits the making of back-up copies of computer programs but the ALRC is interested to ascertain how this exception is currently operating, if it is wide enough, and if for example back-up copies could be copied and downloaded from cloud servers.
Caching, Indexing and other internet functions
The Issues Paper notes that, despite internet service providers, search engines and web hosts relying on indexing and caching for their efficient operation, there is no specific exception to the Copyright Act that permits the copyright or reproduction of copyright material for the purposes of caching and indexing.
There are, however, a number of provisions that deal with temporary reproductions via caching including sections 43A and 111A which allow for the temporary reproduction of copyright material as part of the ‘technical process of making or receiving a communication’.
The Issues Paper considers whether:
- the existing exceptions under the Copyright Act might be clarified or broadened to apply to a greater range of users;
- a new exception might be drafted to account for the necessary use of copyright material for technical functions in the digital environment; or
- a broad and flexible fair use exception that permits such technical copying and communicating might be introduced. The Issues Paper seeks submissions on what kinds of internet-related functions are being impeded by the Copyright Act, and should the Act be amended to provide exceptions for caching, indexing or other uses related to the functioning of the internet.
Cloud computing enables a person to access resources online, including files, storage, software and other services. The resources are not located on the person’s computer, but can be accessed from any internet-enabled device, as the resources are located ‘in the cloud’.
Cloud computing presents many challenges to existing copyright laws including:
- individuals and companies may use cloud computing to store copyright material they have copied themselves, for example music files copied from a CD; and
- in performing necessary technical functions, companies that offer cloud computing services may risk infringing copyright by reproducing material originally uploaded onto their servers by customers.
The Issues Paper seeks stakeholder views as to whether the current law is impeding the development or delivery of cloud computing services. It also asks whether existing exceptions should be amended, or new exceptions added, to account for new cloud computing services in the digital environment.
Retransmission of Free to Air Broadcasts
The Copyright Act currently allows for the retransmission of copyright protected films and sound recordings in free-to-air broadcasts subject to the payment of a statutory licence fee subject to the statutory licensing scheme set out in the Act.
The fees are collected and royalties paid out to rights holders by Screenrights. In these circumstances the original free-to-air broadcaster is not renumerated and there have been concerns expressed by those broadcasters that cable TV operators like FOXTEL are retransmitting free-to-air services as part of their pay TV package without any notice or payment to those broadcasters.
The Copyright Act currently does not cover any retransmission of a free-to-air broadcast if it takes place via the Internet and there is currently debate as to how the Copyright Act applies to IPTV.
The ALRC is inviting submissions as to whether:
- the retransmission of free-to-air broadcasts remain as an exception to copyright in broadcasts; and
- the Copyright Act should be amended to extend the statutory licensing scheme to include a retransmission via the Internet (and if so whether the service should be geoblocked for example, which was a concern raised by Screenrights).
Other questions raised in the Issues Paper (but not dealt with in this alert) include:
- Online use for social, private or domestic purposes
- Transformative use (eg mash-ups)
- Libraries, archives and digitisation
- Orphan works
- Data and text mining
- Educational institutions
- Crown use of copyright materials
- Statutory licences in the digital environment
- Other free-use exceptions
- Contracting out