On 5 June 2013, the Australian Law Reform Commission released a Discussion Paper for its Copyright and the Digital Economy inquiry. The closing date for submissions is 31 July 2013.

Summary

In brief summary, the Australian Law Reform Commission (ALRC) has proposed:

  • the introduction of a broad and flexible “fair use” exception to copyright infringement and the repeal of existing “fair dealing” exceptions;
  • two options for amending the current provisions concerning retransmission of broadcasts, both of which would extend to retransmission over the internet. The extension of the definition of “broadcast” to include internet transmissions; and
  • that agreements that contracting out of certain copyright exceptions will have no effect.

The Discussion Paper, totalling 388 pages, is available on the ARLC website. The Discussion Paper contains 42 proposals to reform the Copyright Act 1968 (Cth) (the Act) and seeks input from stakeholders on 9 specific questions. It summarises and discusses submissions that were received in response to the August 2012 Issues Paper.

The ALRC proposals, if enacted, would have a broad-ranging effect on copyright law and practice in Australia. Clients who may be affected by these proposals should consider making a submission to the ALRC. The closing date for submissions is Wednesday31 July 2013. The ALRC is due to provide its final report to the Attorney General by the end of November 2013.

Fair use of copyright material does not infringe copyright

The ALRC has proposed the introduction of a US-style broad and flexible “fair use” exception to copyright infringement. The ALRC considers that fair use will provide flexibility to respond to changing conditions and to assist innovation. It is intended to be technology neutral and better able to adapt to new technologies and consumer practices. While concerns were raised about the unpredictability of fair use, the ALRC considered that it would not result in excessive uncertainty.

The term “fair” will be left undefined in the Act. When considering whether the use of copyright material is “fair”, a non-exhaustive list of four “fairness factors” will be considered:

  1. the purpose and character of the use;
  2. the nature of the copyright material used;
  3. in a case where part only of the copyright material is used—the amount and substantiality of the part used, considered in relation to the whole of the copyright material; and
  4. the effect of the use upon the potential market for, or value of, the copyright material.

A non-exhaustive list of illustrative purposes will be included. They are seen as examples of broad types of uses that may be fair. The list is not presumptive and the fairness factors will be applied to then determine whether a use is fair. The illustrative list includes:

  1. “Research or study”, “criticism or review”, “parody or satire” and “reporting news”;
  2. “Non-consumptive use”. This is intended to cover purposes such as caching, indexing or data or text mining and other internet functions. A non-consumptive use is a use that does not trade on the “underlying creative and expressive purpose of the material”;
  3. “Private and domestic use”. This is intended to cover purposes such as time shifting, format shifting and backing up data;
  4. “Quotation”;
  5. “Educational use”; and
  6. “Public administration”, including government use of copyright material.

The ALRC has also recommended that third party uses of copyright material on behalf of others should be considered under the fair use exception and the fairness factors. In some circumstances, third party use might be considered to merely facilitate a fair use. However, other factors, such as the commercial purpose of the third party and harm to the rights holders’ market may be more important.

As a consequence of the introduction of a fair use exception, the ALRC has recommended the repeal of many of the existing “fair dealing” exceptions, such as the time-shifting and format-shifting exceptions.

Should the proposal for a general “fair use” exception not be adopted, the ALRC has also developed a number of alternative proposals.

Broadcasting – retransmission of broadcasts and internet transmission proposals

The Discussion Paper presents two alternative options for the reform of the current provisions concerning retransmission of free-to-air broadcasts:

  • The first option is to repeal the free-use exceptions and statutory licensing scheme for retransmission. This would leave remuneration for retransmission as a matter of negotiation between the parties. It would also allow for negotiations to cover retransmission over the internet.
  • The second option is to replace the free-use exception with a remunerated exception, to be dealt with under existing scheme, and to repeal the exclusion of retransmission of “over the internet” from this scheme.

The ALRC has also proposed that the broadcasting exceptions to copyright infringement be extended to apply other forms of communication to the public, including internet transmissions. This would require amending the definition of “broadcast” in the Act. The ALRC has raised questions about whether “on demand” streaming should be excluded.

Other proposals include:

  • An agreement to exclude or limit the operation of certain copyright exceptions should have no effect. These are the exceptions for libraries and archives, and the fair use or fair dealing exceptions for the use of material for research or study, criticism or review, parody or satire, reporting news, or quotations.
  • The repeal of the statutory licensing scheme for the use of material by governments, educational institutions and institutions assisting persons with a print disability, in favour of a system of voluntary licensing.
  • A limitation of the remedies for “orphan works”, where a person has conducted a reasonably diligent search for the rights holder.
  • An exception that allows libraries and archives to make copies of copyright material for the purpose of preservation. The ALRC has also raised a question for stakeholders regarding mass-digitisation projects.