The Commonwealth Attorney-General gave a keynote speech last Friday at the biennial Copyright Law & Practice Symposium. The text of the speech is available online, and as you would expect the A-G took the opportunity to make some copyright-related announcements. The two key “new” announcements in the speech were:
- the commencement of a consultation process in relation to the “safe harbour” provisions of the Copyright Act; and
- an announcement that the ALRC would be tasked with determining whether or not the exceptions under the Copyright Act are “appropriate”.
The consultation process appears to have had a somewhat rocky start, because the Attorney-General’s Department “mistakenly” released the wrong version of the proposed Consultation Paper. The correct version, which quickly displaced the earlier version, was notable for omitting the section entitled “The process of seeking ISP subscriber details in copyright infringement matters”, which requested comment on the desirability of having a “more streamlined process” for content owners to extract subscriber details from ISPs.
Predictably, the differences between the versions have produced a mini-storm in the blogosphere, with the later version being described as “redacted” (presumably this is something different to “mistakenly included”). It is not surprising, however, that the final version of the Consultation Paper omitted this scope, given that this is one of the many controversial issues associated with the ongoing discussions in many jurisdictions between rights holders, ISPs and government. Interestingly, iiNet has taken the opportunity to comment (supportively) in relation to the proposal to streamline access to subscriber details. No doubt others - including, possibly, the High Court - will weigh into the debate in the future.
As for the ALRC review, the underlying concern appears to be that the copyright reforms following the adoption of the US-Australia Free Trade Agreement may have resulted in Australia having a hybrid system of exceptions which is narrower than either the British-originated “fair dealing” tradition or the US-originated “fair use” tradition. The ALRC’s terms of reference are still being developed, and stakeholders will be asked to comment before they are finalised late in the year. In the meantime, however, it is worth pointing out that the Attorney General’s Department conducted a review of the Copyright Act exceptions in 2005, so it will be interesting to see how this latest review will differ in scope from the 2005 review.