On 24 August 2012 the Australian Law Reform Commission (ALRC) released an issues paper: ‘Copyright and the Digital Economy’.

The Attorney-General of Australia, the Hon Nicola Roxon MP, requested that the ALRC report on how copyright material is currently being used in the digital economy and inquire into further desirable uses of copyright material. The request comes in light of the Australian Government’s investment on the National Broadband Network. The main purpose of the report is to consider whether greater availability of copyright material would be of social and economic benefit. The ALRC has stated that they will examine whether greater availability should be achieved through further exceptions under the Copyright Act 1968 (Cth) (the Act) or through statutory licenses.

Exceptions to copyright and statutory licenses

Currently the main exceptions to copyright under the Act include:

  • Fair dealing for the purpose of research or study, criticism or review, parody or satire, and reporting news
  • Reproduction for the purpose of judicial proceedings or professional advice
  • Temporary reproductions made as part of the technical process of making or receiving a communication, or incidentally made as a necessary part of a technical process of using a copy of the material
  • Recording broadcasts for replaying at a more convenient time (time shifting)
  • Reproducing copyright in a different form for private use (format shifting), and
  • Some exceptions to reproduction or copying for educational purposes.

The Act also provides for the use of copyright material in return for payment of a fee to the owner or a collecting society acting on their behalf. However, there are concerns that these exceptions and statutory licenses are not adequate considering the current digital environment.

Guiding principles for copyright law reform

The ALRC issues paper seeks comment on their proposed guiding principles of copyright law reform. The ALRC suggest that copyright law has become overly complex. Reform has consisted of creating specific exceptions to the Act rather than being underpinned by any guiding principles. The ALRC have drafted eight guiding principles for which they seek comments and suggestions. Those guiding principles are that legal reform should:

  1. Promote the development of the digital economy by providing incentives for innovation in technologies and access to content.
  2. Encourage innovation and competition and not disadvantage Australian content creators, service providers or users in Australian or international markets.
  3. Recognise the interests of rights holders and be consistent with Australia’s international obligations.
  4. Promote fair access to and wide dissemination of information and content.
  5. Ensure that copyright law responds to new technologies, platforms and services.
  6. Take place in the context of the ‘real world’ range of consumer and user behaviour in the digital environment.
  7. Promote clarity and certainty for creators, rights holders and users.
  8. Promote the development of a policy and regulatory framework that is adaptive and efficient and takes into account other regulatory regimes that impinge on copyright law.

Issues considered in relation to the reform

Caching, indexing and other internet functions

The issues paper considers whether there should be an exception to allow the use of copyright material for caching, indexing or other uses necessary for technical functions in the digital environment. Internet intermediaries, such as search engines, rely on indexing and caching for efficient operation. Caching allows search engines to quickly retrieve cached copies on its server, rather than having to source the copies from remote servers. Currently, the copying of works by a search engine for this purpose may infringe copyright under the Act, especially if the material is cached for longer than ‘temporary periods’.

Cloud computing

The issues paper asks whether further exceptions should be introduced into the Act to allow for cloud computing services. Many individuals use cloud computing services to store copied copyright material that they have legally obtained. Storing on a remote computer server can enable users to access this material more easily from multiple computers and devices. Currently, cloud computing service providers may be infringing copyright when they reproduce copyright material uploaded to their servers by their customers. It is unclear whether such an action would be exempted under the Act as a temporary reproduction made as part of a technical process.

Copying for private use

As well as considering altering the existing format and time shifting exceptions, the ALRC question whether the Act should permit Australians to copy and store their own legally acquired or licensed copyright material for the purpose of back-up and data recovery. Currently the Act only allows back-up of copies of computer programs and any matter held together with that program on the same computer system.

The ALRC noted the recent Full Federal Court decision on the Optus TV Now time shifting service which found that the service amounted to copyright infringement; (reported Piper Alderman E-bulletin June 2012 edition. Since then, the High Court has refused leave to appeal from this decision). The ALRC poses the question whether further clarification of the “private use” exemptions are required.

Other issues

The issues paper also considers, amongst other topics:

  • Whether online uses of copyright materials for social, private or domestic purposes should be more freely permitted, i.e. the uploading and sharing on the internet of noncommercial ‘user-generated content’, such as audio-visual excerpts from copyright material with commentary by the individual.
  • Whether the Act should contain an exception to allow for transformative, innovative and collaborative use of copyright materials, for example ‘remixes’ created for non-commercial purposes.
  • Whether the Act should be amended to permit greater digitisation of copyright materials held by public and cultural institutions, libraries and archives.
  • Whether the Act should be amended to create a new exception or collective licensing scheme for use of orphan works.
  • Whether the Act should contain an exception for the use of copyright material for text/ data mining and other analytical software which copies existing electronic information in order to analyse the data for patterns and trends.
  • Whether the statutory licensing scheme which applies to use of certain copyright material by educational and other institutions is adequate in the current digital environment.
  • Whether the current statutory licensing scheme concerning government use of copyright material is appropriate.
  • Whether retransmission of free-toair broadcasts should continue to be allowed without the permission or remuneration of the broadcaster. Currently, retransmission does not infringe copyright laws if remuneration is paid to the rights holders of the content in the broadcast.
  • Whether the current fair dealing exceptions should be simplified or whether there should be any other specific fair dealing exceptions, such as an exception for the purpose of quotation.
  • Whether the Act should include a broader exception based on the concept of fairness.
  • Whether the current statutory licensing systems operate efficiently and whether any copyright material covered by such a license should instead be covered by a free-use exception.
  • Whether the Act should be amended to prevent rights holders from contracting out of copyright exceptions.

Submissions to the ALRC on the issues paper are due by 16 November 2012.