Copyright in the digital world

Mary Anne Neilsen, Law and Bills Digest

Key issue 
The challenges the digital world presents to copyright are far-reaching. The Australian Law Reform Commission is conducting an inquiry into copyright and the digital economy. Depending on the Government’s response to this inquiry, the new Parliament may be faced with the complex task of considering legislative reform to modernise copyright law so it is more suited to a digital environment.

Much has been happening in the world of copyright.

At an international level, Australia has been part of the negotiations for a new copyright treaty to facilitate access to published works by visually impaired people.

In Australia, there have been a number of recent challenging decisions, where courts have had to grapple with issues such as cloud computing, time shifting, web-based retransmission of broadcasts and liability of Internet Service Providers (ISPs) for copyright infringement.

The Attorney-General’s Department is conducting a review of the exceptions to the technological protection measures (TPMs) provisions in the Copyright Act 1968. TPMs are technical locks copyright owners use to stop their material being copied or accessed without permission. In certain circumstances, the Copyright Act allows circumvention of TPMs.

Perhaps of greater significance, the Australian Law Reform Commission (ALRC), at the request of the Gillard Government, is in the midst of an inquiry into copyright and the digital economy.

Copyright: a delicate balance

Copyright law has long sought to create an appropriate balance between competing interests. Copyright is concerned with encouraging the creation and dissemination of works of art and intellect, but it also acknowledges that there are appropriate limits to the rights of copyright holders. Retaining the correct balance has always been difficult; it has become more so in the digital age.

Undoubtedly, the challenges that the digital world presents to copyright are far-reaching, and will continue to be part of the political landscape for years to come. It is quite likely that the legislators in the new Parliament will face a major challenge of drafting copyright laws that keep up with the pace of technological change and suit products that have not yet been thought of.

Court decisions: copyright and the Internet

In the last few years, Australian courts have had to make important decisions concerning who is liable for Internet copyright violation. Two of the more high-profile decisions are Roadshow v iiNet and the NRL v Optus TV Now case.

Roadshow v iiNet concerned the liability of an ISP, iiNet, for copyright infringements its customers had committed using peer-to-peer file-sharing technology to upload and download copyright films. The High Court found the ISP not liable, as it had not authorised the copyright infringement of its users. However, the judgment leaves open questions about the scope of authorisation liability under the Copyright Act, and its applicability to modern technological contexts.

In the NRL v Optus TV Now case, the High Court refused to revisit a full Federal Court ruling that Optus, the provider of a cloud-based television recording service (TV Now), infringed the copyright in the broadcasts on the service. This decision is the first occasion an Australian court has considered copyright issues arising in cloud-based services and it raises important questions of whether the time-shifting exceptions in the Copyright Act should be extended to cloud storage platforms.

ALRC reference: copyright and the digital economy

On 29 June 2012, the ALRC received terms of reference for an inquiry into copyright and the digital economy. The ALRC was asked to consider whether exceptions and statutory licences in the Copyright Act are adequate and appropriate in the digital environment and whether further exceptions should be recommended.

The inquiry is ambitious and the issues being considered by the ALRC cover 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 is also looking at issues affecting libraries and cultural institutions, such as preservation and digitisation, contracting out of copyright exceptions and orphan works (that is, works where the owner of copyright cannot easily be established).

The ALRC has determined that its inquiry into these issues should be conducted according to five framing principles, namely:

  • acknowledging and respecting authorship and creation
  • maintaining incentives for creation of works and other subject matter
  • promoting fair access to, and wide dissemination of, content
  • providing rules that are flexible and adaptive to new technologies and
  • providing rules that are consistent with Australia’s international obligations.

The ALRC has so far released an Issues Paper and a Discussion Paper in relation to the inquiry.

One of the more significant of the 42 proposals in the Discussion Paper is the introduction of a new broad exception for fair use of copyright material. The fair use defence would replace most of the more specific exceptions in the Copyright Act and would be applied on a case-by-case basis according to fairness factors. Some argue a fair use exception is better able to be applied flexibly to changes in technology in the digital age. Others oppose it on the grounds 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 the interests of copyright users being tipped too heavily in favour of users.

There is significant interest in the inquiry, with 295 submissions made to the earlier Issues Paper and 860 to the Discussion Paper. These submissions will help shape the final report, which is to be submitted to government by the end of November 2013. Depending on the government response, the new Parliament may be faced with the complex task of considering legislative reform to modernise copyright law so it is more suited to a digital environment.

Further reading

Australian Law Reform Commission (ALRC), Copyright and the digital economy: discussion paper (DP 79), ALRC, Sydney, 2013.

Australian Law Reform Commission (ALRC), Copyright and the digital economy: issues paper (IP 42), ALRC, Sydney, 2012.

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