ALRC Final Report Announced
The Government released the final report of the Australian Law Reform Commission (ALRC) on 13 February.
‘FAIR USE’ EXCEPTION
The recommended ‘fair use’ exception would apply to uses made for any purpose (including business-related purposes), provided the use was ‘fair’. By contrast, all existing exceptions relate to a specified purpose (such as research, reporting news, parody, private ‘format-shifting’, temporary copying). There would be a list of ‘illustrative purposes’ in the legislation, but the exception could apply to other uses.
The ‘illustrative purposes‘ are: research or study; criticism or review; parody or satire; reporting news; professional advice; quotation; non-commercial private use; incidental or technical use; library or archive use; education; and access for people with disability.
Factors affecting whether or not a use is ‘fair’ would include:
(a) the purpose and character of the use;
(b) the nature of the copyright material;
(c) the amount and substantiality of the part used; and
(d) the effect of the use upon the potential market for, or value of, the copyright material.
These factors are similar to those in the US ‘fair use’ exception, and those in an existing Australian exception (section 40) that allows fair dealing for research or study. That exception includes an additional ‘fairness’ factor: the possibility of obtaining the work within a reasonable time at an ordinary commercial price.
REPEAL OF EXISTING SPECIFIC EXCEPTIONS
The report recommends the repeal of a number of specific exceptions covering activities that would instead be covered by the new ‘fair use’ exception. These include exceptions for research, criticism, parody, reporting news, professional advice, ‘format shifting’, ‘time shifting’, temporary uses and caching.
The report also recommends that the statutory licences for education and government be retained, with certain ‘clarifications’ and simplifications. In its Discussion Paper released in June 2013, the ALRC recommended that the statutory licences be repealed. The ALRC reviewed its position in the light of submissions and consultations.
NEW SPECIFIC EXCEPTION FOR PUBLIC ACCESS REQUIRED BY STATUTE
The ALRC has recommended a new specific exception for ‘uses where statutes require local, state or Commonwealth governments to provide public access to copyright material‘. It refers to freedom of information laws, planning and environment laws and land title registration. The ALRC says that this is ‘nearly always fair’, and a specific exception is warranted. The report includes consideration of the recent determination by the Copyright Tribunal awarding fair compensation to surveyors from the the NSW Government’s sale of survey plans.
The report also recommends a new exception for correspondence and other material sent to government. The exception would allow internal uses of this material, and public access to material that was previously unpublished.
The report recommends a new exception for ‘orphan works‘ (works for which a copyright owner cannot be found).
The exception would limit the remedies against a person who infringed copyright who had:
- been unable to find the copyright owner after a ‘diligent search’; and
- attributed the author.
The recommendation is modelled on an approach developed (but not yet implemented) in the US: the issue is currently under review in the US. The ALRC decided not to follow the approached recently adopted in the UK, based on a licensing solution.
The report recommends a new provision that would make unenforceable a contractual provision that purports to prevent reliance on a specific exception for libraries and archives. The recommendation has implications for subscription contracts between publishers and libraries.
WHAT HAPPENS NOW
The Government will now consider the recommendations and decide whether it will accept any of them, with or without variation. If the government decides to introduce amendments to the Copyright Act, this is likely to result in a series of consultations by the Government and the Parliament.
On tabling the report in Parliament, the Attorney General made the following remarks:
These recommendations will no doubt be controversial and the Government will give them very careful consideration. We are particularly concerned to ensure that no prejudice is caused to the interests of rights holders and creators, whether the proposed fair use exception offers genuine advantages over the existing fair dealing provisions and that any changes maintain and, where possible, increase incentives to Australia’s creative content producers.
Australia’s creative industries are not just a vital part of our culture, they are also a thriving sector of our economy.
I want to reaffirm the Government’s commitment to content industries. Not only do they contribute to our economy – they build a culture of innovation and artistic endeavour in Australia.
It is the Government’s strong view that the fundamental principles of intellectual property law that protect the rights of content creators have not changed, merely because of the emergence of new media and platforms.
The principles underlying intellectual property law and the values which acknowledge the rights of creative people are not a function of the platform on which that creativity is expressed.
In this changing digital world, we must look for the opportunities, but in reviewing the intellectual property laws, the Government has no intention of lessening rights of content creators to protect and benefit from their intellectual property.
- Statement to the Senate by Senator Brandis on tabling of ALRC Report on Copyright and the Digital Economy (13 February 2014)
- Senator Brandis: Address at the Opening of the Australian Digital Alliance Fair Use for the Future – A Practical Look at Copyright Reform Forum (14 February 2014)