The Australian Law Reform Commission has released a discussion paper relating to its review of whether the current exceptions to copyright infringement in the Australian Copyright Act (Act) are appropriate and whether further exceptions should be introduced.

We discuss below the ALRC’s proposals for amending the Act including on fair use/fair dealing, contracting out of exceptions, broadcasting exceptions, retransmission of broadcasts and orphan works.

Submissions may be made to the ALRC by 31 July 2013 and the ALRC’s report is due to the government by 30 November 2013.

Reform principles

In the first stage of the Inquiry, the ALRC received close to 300 submissions. Stakeholders identified the following framing principles to guide any reform:

  1. acknowledging and respecting authorship and creation
  2. maintaining incentives for creation of works and other subject matter
  3. promoting fair access to and wide dissemination of content
  4. providing rules that are flexible and adaptive to new technologies
  5. providing rules consistent with Australia’s international obligations.

Areas for submissions

The ALRC proposes the following main changes to the Act, to seek to reform the Act in accordance with those principles:

  1. Fair use rather than exceptions: introducing a fair use exception, including a statement that fair use does not infringe copyright, with a non-exhaustive list of ‘fairness factors’ including:
    1. the purpose and character of the use
    2. the nature of the copyright material used
    3. if only part of the copyright material is used, the amount and substantiality used, in relation to the whole
    4. the effect of the use on the potential market, or value of, the copyright material.

and a non-exhaustive list of examples of ‘fair use’, including:

  1. research / study
  2. criticism / review
  3. parody / satire
  4. reporting news
  5. non-consumptive use
  6. private and domestic
  7. quotation
  8. education, and
  9. public administration.

In the main, existing statutory exceptions to infringement would be removed, or amended to provide that the ‘fairness factors’ must be considered in determining whether copyright has been infringed.

The ALRC has asked for submissions as to:

  1. any further illustrative purposes to be listed
  2. whether any other exceptions to infringement (other than suggested by the ALRC) should be repealed if the ‘fair use’ exception is included in the Act
  1. If no ‘fair use’, replacing specific exceptions with more general exceptions based on purpose: if the fair use exception is not introduced, introducing new fair dealing exceptions, including for quotation, ‘non-consumptive use’ (to address caching, indexing or data / text mining activities), private and domestic use (which would replace current time and format shifting exceptions) education purposes, professional advice, libraries and archives, public administration / government purposes, each requiring the ‘fairness factors’ to be considered. The specific current exceptions that allow limited uses of particular works and subject matter for education and government purposes would be repealed.
  2. Libraries, archives and digitisation: if the fair use exception is not introduced, introducing a new fair dealing exception for libraries and archives.

A further exception would more generally permit libraries and archives to make copies of copyright material for preservation purposes (being material that cannot be obtained commercially at an ordinary commercial price within a reasonable time), and the existing sections of the Act dealing with preservation be limited.

The Act would also require libraries and archives supplying users with electronic copies of copyright material to take measures to prevent further communication or alteration of that material and to limit the time for access.

The ALRC has asked for submissions as to whether and how the Act should be amended to assist voluntary extended collective licensing, in particular in relation to mass digitisation projects by libraries, museums and archives.

  1. Removing statutory licensing: repealing the statutory licensing schemes, instead allowing licences to be negotiated voluntarily by governments, educational institutions and institutions assisting persons with a print disability.

The ALRC has asked for submissions as to whether a ‘free use’ exception should be enacted to allow such use where licences cannot be negotiated.

  1. Orphan works: amending the Act to limit the remedies available for infringing copyright, if the defendant can establish that at the time of infringement it has conducted a ‘reasonably diligent search’ for the rights holder, and the work had been clearly attributed to the author, having regard to the technology and facilities available for searching at that time.
  2. Retransmission of free-to-air broadcasts: alternative amendments are proposed here, either:
  1. the exception to broadcast copyright provided by the Broadcasting Services Act 1992 (Cth) and the statutory licensing scheme under the Act in relation to retransmission of free-to-air broadcasts should be repealed. This would allow licences to be negotiated voluntarily.
  2. the exception to broadcast copyright provided by the Broadcasting Services Act 1992 (Cth) in relation to retransmission of free-to-air broadcasts should be repealed and replaced with a statutory licence. 

If option (b), or the Act’s retransmission scheme is retained, retransmission over the internet should be included in the statutory licensing scheme, and the retransmission scheme amended to apply to any technique for retransmission.

The ALRC has asked for submissions as to what amendments to the Act would be needed to ensure that the scheme operated appropriately, if retransmission over the internet is included in the Act’s statutory licensing scheme, including in particular in relation to internet protocol television.

  1. Broadcasting: to the extent that the ‘broadcast’ exceptions are retained, the Act would be amended to ensure that the exceptions also apply to the transmission of television and radio programs using the internet.

The ALRC has asked for submissions as to

  1. the appropriate scope of the exceptions – for instance, whether the exceptions should only cover the internet equivalent of a TV/ radio program and exclude ‘on demand’ programs, or only cover content that the free-to-air broadcaster chooses to make available on the internet;
  2. whether the Act should be amended to repeal the statutory caps on the remuneration the Copyright Tribunal may order for radio broadcasting of published sound recordings; and
  3. whether the compulsory licensing scheme for broadcasting of published sound recordings should be repealed.
  1. Contracting out: providing in the Act that any agreement that excludes or has the effect of excluding or limiting the operation of certain copyright exceptions (including certain of the fair use and fair dealing exceptions) has no effect.

Timeline and next steps – the ALRC seeks further submissions in response to the discussion paper, to be made before 31 July 2013. The ALRC’s final report to the government is currently due by 30 November 2013.