ALRC report released: Copyright and the Digital Economy

Parliament house flag post

ALRC report released: Copyright and the Digital Economy

Posted 20/02/2014 by Mary Anne Neilsen

Thursday 13 February 2014 saw the release of the much anticipated Australian Law Reform Commission final report for its inquiry, Copyright and the Digital Economy.

The report follows a complex and ambitious 18 month inquiry in which the ALRC was asked to consider whether current copyright exceptions are adequate and appropriate in the digital era. The inquiry attracted strong interest— receiving over 870 submissions— and considered a broad range of topics  from caching and indexing; to cloud computing; online use for social, private or domestic purposes; transformative use such as mash-ups or sampling in music; and retransmission of free-to-air broadcasts. The inquiry also looked at issues affecting libraries and cultural institutions such as preservation and digitisation, and contracting out of copyright exceptions.

When tabling the report in Parliament, the Attorney-General Senator the Honourable George Brandis said the ALRC inquiry was the most significant review of the Copyright Act since the Act came into operation in 1968.

Recommendations

The report makes 30 recommendations which the ALRC President Professor Rosalind Croucher said 

are designed to allow for a more principles-based and less prescriptive approach to copyright law. In a highly contested field, we have suggested reforms that will protect creators and their markets, provide appropriate access to material, simplify and modernise the law, and create a better environment for innovation and economic development.

In summary, the recommendations include:

  • the introduction of a flexible fair use exemption as a defence to copyright infringement
  • retaining and reforming some existing specific exemptions (including the exemptions that apply to parliamentary libraries), and introducing certain new specific exemptions
  • clarifying the statutory licensing scheme
  • changing the broadcasting exemptions, and
  •  
  • amending the Copyright Act to limit contracting out of copyright exceptions.

 

Key recommendation: a fair use exception

Undoubtedly the key recommendation of the ALRC report is that Australia adopt a ‘fair use’ exception to copyright. Fair use is a defence to copyright infringement that essentially asks of any particular use: Is this fair?  In deciding whether a particular use of copyright material is fair, a number of principles, or ’fairness factors’ must be considered. Chapter 5 of the report outlines in greater detail how these fairness factors would operate.

Fair use is found in a number of countries and notably has existed in the United States for the last 35 years. In support of the doctrine, the ALRC report notes that the use of the doctrine in the US ‘has not seemed to have greatly inhibited the creation of films, music, books and other material in the world’s largest exporter of cultural goods, the United States’.

 If introduced in Australia, fair use would build on existing Australian laws that allow fair dealing of copyright material for purposes such as research, study and reporting the news.

The Commissioner in charge of the inquiry, Professor Jill McKeough described the advantages of fair use saying,

Fair use is a flexible exception that can be applied to new technologies and services, which is crucial in the digital economy.’

 Fair use can facilitte the public interest in accessing material, encourage new productive uses, and stimulate competition and innovation […]

But fair use also protects the interests of writers, musicians, film-makers, publishers and other rights holders. It was very important that in an inquiry about exceptions to copyright, we not lose sight of the purpose of copyright law.

Fair use is undoubtedly a controversial doctrine. As the ALRC report notes, the introduction of fair use to Australia is supported by the internet industry, telecommunications companies, the education sector, cultural institutions and many others. However it is largely opposed by rights holders. Those opposing fair use argue amongst other things that there is no evidence that it would assist innovation and that an open-ended fair use exception would result in the balance between the interests of copyright owners and users being tipped too heavily in favour of users.  Presenting this side of the debate, commentator Paul Noonan recently pointed to a recent round of US  cases on fair use that have not worked out well for artists and authors whose works have been appropriated and used by others without consent or remuneration.

Responses to the report

The Government is still to respond to the report. In a speech to the Australian Digital Alliance, the day after the report’s release, the Attorney-General acknowledged the need for copyright law reform, noting also that a strong case has been made that the Copyright Act is unnecessarily restrictive in potentially prohibiting some beneficial uses of copyright material. Perhaps more significantly, Senator Brandis also stated that he remains to be persuaded that fair use is the best direction for Australian law. Nevertheless he will ‘bring an open and inquiring mind to the debate’ as the Government considers   the approach it will take to the report.

Shadow Attorney-General Mark Dreyfus QC has welcomed the public release of this significant report stating he looks forward to the Government response: 

Having received the report in November, the Government should signal their plans as soon as possible, to give the certainty and direction industry needs.

 


Thank you for your comment. If it does not require moderation, it will appear shortly.
Facebook LinkedIn Twitter Add | Email Print

FlagPost

Flagpost is a blog on current issues of interest to members of the Australian Parliament


Parliamentary Library Logo showing Information Analysis & Advice

Archive

Syndication

Tagcloud

refugees asylum immigration Australian foreign policy Parliament climate change elections women social security Indigenous Australians Australian Bureau of Statistics Employment Sport illicit drugs people trafficking taxation Medicare welfare reform Australian Defence Force higher education welfare policy United Nations health financing Asia income management Middle East criminal law disability Australian Sports Anti-Doping Agency World Anti-Doping Agency United States federal budget gambling school education forced labour aid statistics Australian Electoral Commission WADA emissions trading dental health Australia in the Asian Century steroids detention Private health insurance OECD ASADA labour force transport Law Enforcement Australian Federal Police Industrial Relations people smuggling National Disability Insurance Scheme Australian Crime Commission slavery Senate election results Papua New Guinea Australian Public Service constitution International Women's Day corruption Afghanistan Fair Work Act child protection debt federal election 2013 parliamentary procedure poker machines ALP New Zealand Newstart Parenting Payment 43rd Parliament political parties Census High Court skilled migration voting Federal Court terrorist groups Higher Education Loan Program HECS youth paid parental leave Aviation environment foreign debt gross debt net debt defence capability customs doping health crime health risks multiculturalism aged care Gonski Review of Funding for Schooling sex slavery sea farers Special Rapporteur leadership United Kingdom UK Parliament Electoral reform politics banking firearms public policy violence against women domestic violence mental health China ADRV terrorism social media pensions welfare ASIO intelligence community Australian Security Intelligence Organisation governance public service reform Carbon Pricing Mechanism carbon tax mining military history employer employee fishing by-election European Union same sex relationships international relations coal seam gas family assistance planning United Nations Security Council Australian economy food vocational education and training Drugs health reform Indonesia children codes of conduct terrorist financing health system money laundering asylum seekers early childhood education Canada Population Financial sector national security fuel disability employment Tasmania integrity science research and development Australian Secret Intelligence Service sexual abuse federal state relations World Trade Organization Australia accountability housing affordability bulk billing water renewable energy children's health health policy Governor-General US economy export liquefied natural gas foreign bribery question time speaker superannuation expertise Senators and Members climate Intergovernmental Panel on Climate Change Department of Agriculture Fisheries and Forestry food labelling Pacific Islands reserved seats new psychoactive substances synthetic drugs UNODC carbon markets Indigenous constitutional recognition of local government local government consumer laws PISA royal commission US politics language education baby bonus Leaders of the Opposition Parliamentary remuneration Australia Greens servitude Trafficking Protocol energy forced marriage rural and regional Northern Territory Emergency Response ministries social citizenship human rights High Court; Indigenous; Indigenous Australians; Native Title ACT Indigenous education Norfolk Island External Territories emissions reduction fund; climate change child care funding refugees immigration asylum procurement Indigenous health e-voting internet voting nsw state elections 44th Parliament 2015 ABS Age Pension Death penalty capital punishment execution Bali nine Bali bombings Trade EU China soft power education Fiji India Disability Support Pension Antarctica Diplomacy by-elections state and territories workers Bills anti-corruption fraud bribery transparency corporate ownership whistleblower G20 economic reform innovation standards NATO Members of Parliament Scottish referendum Middle East; national security; terrorism social services Criminal Code Amendment (Misrepresentation of Age to a Minor) Bill 2013 online grooming sexual assault of minors ACT Assembly public health smoking plain packaging tobacco cigarettes Asia; Japan; international relations Work Health and Safety Migration; asylum seekers; regional processing China; United States; international relations fiscal policy Racial Discrimination Act; social policy; human rights; indigenous Australians Foreign policy Southeast Asia Israel Palestine regional unemployment asylum refugees immigration political finance donations foreign aid Economics efficiency productivity human rights; Racial Discrimination Act employment law bullying Animal law; food copyright Australian Law Reform Commission industry peace keeping contracts workplace policies trade unions same-sex marriage disorderly conduct retirement Parliament House standing orders public housing prime ministers election timetable sitting days First speech defence budget submarines Somalia GDP forestry world heritage political engagement leave loading Trade; tariffs; safeguards; Anti-dumping public interest disclosure whistleblowing Productivity Commission regulation limitation period universities Ireland cancer gene patents genetic testing suspension of standing and sessional orders animal health live exports welfare systems infant mortality middle class welfare honorary citizen railways disciplinary tribunals standard of proof World Health Organisation arts international students skilled graduate visas temporary employment visas apologies roads Italy national heritage NHMRC nutrition anti-dumping Constitutional reform referendum Rent Assistance competition policy pharmaceutical benefits scheme obesity evidence law sacrament of confession US presidential election international days DFAT UN General Assembly deregulation Regulation Impact Statements administrative law small business Breaker Morant homelessness regional engagement social determinants of health abortion Youth Allowance Members suspension citizen engagement policymaking federal election 2010 workplace health and safety Trafficking in Persons Report marine reserves hearing TAFE Victoria astronomy resources sector YMCA youth parliament alcohol Korea rebate Australian Greens presidential nomination Racial Discrimination Act entitlements political parties preselection solar hot water Financial Action Taskforce Horn of Africa peacekeeping piracy Great Barrier Reef Stronger futures political financing Hung Parliament political education social inclusion Social Inclusion Board maritime early childhood National Quality Framework for Early Childhood Education and Care Murray-Darling Basin Iran sanctions Norway hospitals republic President Barack Obama Presidential visits

Show all
Show less
Back to top