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.
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.