Productivity Commission final IP report

On 20 December 2016, the government released the final report by the Productivity Commission (PC) on Australia’s intellectual property arrangements. The report covers all areas of intellectual property, including copyright.

Most of the recommendations about copyright are substantially the same as those in the draft report. They are:

  • introduction of a broad new copyright exception, modelled on the ‘fair use’ exception in US copyright law
  • repeal of restrictions on ‘parallel importation’ of books
  • allowing consumers to circumvent ‘geoblocking’ technology
  • an ‘open access’ policy for publicly funded research
  • extension of the ‘safe harbour’ provisions for internet service providers to other online service providers such as Google

The PC also repeated its view that the period of copyright protection is too long and that its recommendation to introduce a ‘fair use’ exception would ‘go some way to redress this imbalance’:

… the commercial life of most copyright material is less than 5 years. Studies have found that a term of around 25 years enables rights holders to generate revenue comparable to what they would receive in perpetuity

There are some changes in detail, but not substance, in the final recommendations. For example, the PC recommends that the government adopt the formulation of a ‘fair use’ exception in the Australian Law Reform Commission (ALRC) 2013 report, rather than the formulation in the PC’s draft report.

The final report also includes some new recommendations, some of which are based on requests for information in the draft report:

  • adoption of the ALRC recommendation to limit liability for the use of ‘orphan works’ (works for which a rightsholder cannot be identified)
  • that provisions in contracts that prohibit reliance on copyright exceptions be unenforceable (sometimes referred to as ‘contract override’)
  • that the Australian Competition and Consumer Commission review the voluntary Code of Conduct for Copyright Collecting Societies
  • some changes to the Australian Government’s approach to IP policy, both domestically and internationally
  • changes to the Federal Circuit Court, to improve access to enforcement for small claims

The Government released its response to the report on 25 August 2017.



25 August 2017

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