Summary

The Australian Law Reform Commission's (ALRC) final report on Copyright and the Digital Economy has just been publicly released. The ALRC recommended that a ‘fair use’ exception be introduced and existing ‘fair dealing’ exceptions in the Australian Copyright Act be repealed. The ALRC also recommended various other changes to make the existing Copyright Act framework more flexible.

ALRC final recommendations

The final report is available here.

Some of the highlights include:

  • Fair use: the ALRC recommends that a ‘fair use’ exception be introduced, and the existing ‘fair dealing’ exceptions repealed. Alternatively, the ALRC recommends that if the ‘fair use’ exception is not introduced, the fair dealing exceptions be amended to include more specific use exceptions, and to require there to be reference to certain fairness factors.
  • Statutory licensing continues: the ALRC has withdrawn its earlier recommendation to repeal the statutory licensing schemes. Instead, the ALRC recommends the schemes be amended to clarify that the scheme does not apply where use of copyright material would not, under another provision (eg the fair use / fair dealing exceptions) infringe copyright, and to give more flexibility around payment of remuneration by persons under the scheme, rather than requiring payment through a collecting society, or subject to prescriptive terms around records and notices.
  • Orphan works: the ALRC recommends amendments to the Act to limit the remedies available for infringing copyright in relation to ‘orphan works’.
  • Retransmission and broadcasting: the ALRC recommends that when the Government considers media and communication policy in relation to convergence, it considers:
    • repealing the statutory transmission scheme under the Act and the Broadcasting Services Act 1922 (Cth) for free to air broadcasts. Retransmission would then be entirely the subject of negotiation between broadcasters, retransmitters and content rights holders. Alternatively, the ALRC recommends clarifying the scope of the internet exclusion under the Act.
    • repealing exceptions in the Act permitting certain broadcasts, and expanding other exceptions to cover transmission of linear television or radio programs using the internet or other forms of communication for sound broadcasting by holders of a print disability radio licence, and copying of broadcasts by educational institutions.
  • Some constraints on contracting out: If the Act is revised to include a fair use exception, the ALRC recommends that no statutory limitation be placed on contracting out of the fair use exception. Otherwise, if fair use is not introduced, and existing fair dealing exceptions are amended, the ALRC recommends that the Act be amended to prevent contracting out of the new fair dealing exceptions.  The ALRC recommends that the Act provide that any term that seeks to contract out of specific library and archive exceptions is unenforceable.

Next steps

The Government will need to consider the recommendations closely and there is no set timeframe by which the Government is required to respond. We will publish a more detailed report on some of the ALRC recommendations in the near future.