Supplementary Report by the Australian Labor Party
1.1
Labor Senators support the majority report's consideration of the
evidence in most areas and endorse the majority report's recommendations. Labor
Senators recognise that the recommendations are an attempt to rectify certain
drafting and technical problems in the Bill, and are of the view that these
recommendations will assist in improving relevant aspects of the Bill's practical
operation.
1.2
However, Labor Senators are of the view that the majority report does
not place adequate emphasis on a number of significant matters. First and
foremost, Labor Senators are seriously concerned about the short timeframe set
by the Government for this inquiry. The Bill proposes major amendments to
copyright law in Australia and raises many complex issues. Further, and
predictably, the committee received a large volume of detailed and lengthy submissions.
Labor Senators consider that the complex nature of the issues, coupled with the
extremely short timeframe set by the Government for the inquiry, has seriously
hampered the committee in its efforts to comprehensively consider, and report
on, all the evidence before it.
1.3
As highlighted in the majority report, consultation in relation to many
of the amendments contained in the Bill has been inadequate, or in some cases
non-existent. The Bill proposes 'unexpected' changes in some areas; these changes
were not contained in the Exposure Draft of the Bill, nor were they the subject
of public consultation processes. Labor Senators consider that some of the more
contentious issues raised by the Bill might have been resolved at an earlier
stage if adequate exposure and consultation had occurred. Labor Senators note
that the committee has continued to receive submissions right up to its reporting
date – this would appear to indicate that stakeholders are concerned that they
have been unable to fully articulate their arguments. Labor Senators are also
concerned that the inadequate consultation and short timeframe of this inquiry
has prevented the information and communications technology industry, in
particular the open source software sector, from having their concerns about
innovation and competition heard and possibly addressed through the course of
this inquiry.
1.4
Labor Senators agree that only those provisions of the Bill related to
implementation of the AUSFTA could be considered 'urgent'. Ideally, consideration
of several significant aspects of the Bill should be deferred until proper
analysis and deliberation takes place by all interested parties, and by
Parliament.
Strict liability provisions
1.5
Labor Senators agree with the majority report's conclusions in relation
to the Bill's strict liability provisions. Nevertheless, Labor Senators express
the view that these provisions should be put on hold pending further
consideration of how they will operate in practice. The committee has not been
able to fully consider the impact of the provisions due to the short timeframe
for the inquiry.
1.6
Labor Senators are particularly concerned about the potential impact of
the strict liability provisions on the ordinary use of legitimately acquired
products by consumers. Since the proposed provisions introduce new laws with
potentially broad implications, a thorough consideration of their likely effect
is required.
1.7
Labor Senators also remain concerned that the AFP indicated to the
committee that it is yet to form a view on Schedule 1 of the Bill. This is a
very good reason to defer implementation of these provisions until their full
impact can be assessed.
Time-shifting and format-shifting
1.8
Labor Senators consider that new and emerging technologies should be
encompassed in any format-shifting exceptions to copyright infringement.
However, they concede that this is not possible, due to the restrictive nature
of the exceptions-based regime contained in the Copyright Act. Labor Senators
also note the choice by the current Government to pursue specific exceptions
rather than general 'fair use' exceptions for private use. It is extremely
difficult for Labor Senators to consider the alternative path and recommend
amendments to the Bill to establish a fair use regime, particularly in the timeframe
permitted. In this context, Labor Senators note that further specificity with
exceptions creates difficulties from the perspectives of both copyright holders
and consumers, further enhancing the argument for a private 'fair use' regime.
1.9
Given the timeframe, however, Labor Senators have opted to recommend expansion
of copyright exceptions, at the same time acknowledging that this will not
solve the fundamental and ongoing problem of Australian copyright law's
inability to recognise rapid changes in technology and the use of new
technology by consumers.
1.10
Therefore, Labor Senators express the view that the use of currently
available technologies (such as format-shifting to and from DVDs, and the use
of podcasts, and webcasts) needs to be adequately recognised and addressed in the
exceptions-based regime.
1.11
Labor Senators are also of the view that copying for personal and
domestic use should be allowed in places other than the home. While supporting
the majority's recommendation that the Bill be amended to make absolutely clear
that consumers are not restricted to watching and listening to recordings in
their own homes, Labor Senators also believe that consumers should not be
restricted to making copies in 'domestic premises' only.
1.12
Further, Labor Senators believe that there is a need for the Copyright
Act to explicitly recognise that time-shifting and format shifting often legitimately
involves more than one copy being made. Otherwise, the real life usage of
products that consumers have legitimately purchased will not be reflected in
the legislation, and people will continue to break the law through normal and
accepted usage.
Three-step test
1.13
Labor Senators also note the difficulties and competing interests with
respect to implementation of the three-step test in domestic legislation.
However, Labor Senators are of the view that the particular way the Government
has chosen to embody the three-step test in the Bill is problematic and an
example of poor drafting that will no doubt lead to confusion and uncertainty
in practice. Not only will judges be required to interpret the three-step test,
but so will the users to which the exceptions apply. This is not only
impractical, but also potentially costly to those user groups who may have to
seek expert advice on how to properly interpret the three-step test.
1.14
Labor Senators are of the view that the legislative embodiment of the
three-step test requires further critical examination by the Government.
Fair dealing for research and study
1.15
Labor Senators are of the view that the recommendation contained in the
majority report in relation to fair dealing for research and study is an
inadequate way of dealing with the issue. Labor Senators consider that arguments
for the inclusion of a quantitative limit on 'deemed' reproductions to accord
with international obligations are weak. Moreover, Labor Senators understand
that there are conflicting legal opinions as to whether this is a correct
interpretation. The majority's recommendation implies that the disadvantage the
amendment creates ought to be 'clarified' to remove its negative impact. Labor
Senators are of the view that a preferable approach would be to retain the
existing provisions of the Copyright Act in their entirety.
Official copying of library and archive material
1.16
Labor Senators expresses the view that the 'commercial availability
test' contained in this exception that requires cultural institutions to take
into account whether an electronic reproduction of a work can be obtained
within a reasonable time, at an ordinary commercial price, may interfere with
ordinary collections policies of cultural institutions. Labor Senators
recommend that this requirement be removed from the Bill.
Maker of communication – Schedule 7
1.17
Labor Senators note concerns raised by ISPs and search engines that they
will incur additional costs and be vulnerable to liabilities for communications
of copyright-infringing activities which are completely out of their control.
Labor Senators are of the view that this issue warrants further consideration
and urges the Federal Government to closely monitor such activities.
Copyright Tribunal amendments
1.18
Labor Senators support an additional recommendation to resolve an issue
raised by the Australian Vice Chancellors' Committee (AVCC) – namely, that the
proposed provisions relating to the Copyright Tribunal permit the Copyright
Tribunal to impose an expensive burden on educational institutions, about which
they were not consulted. The issue of greatest concerns relates to so-called 'records
notices'.
1.19
The Bill contains a repeal of the provisions which give effect to a
prescribed record keeping system. The AVCC argued that this is despite the fact
that the Copyright Law Review Committee considered these provisions in its Simplification
Report Part 1, and recommended that they be retained. If the proposed repeal is
implemented, the AVCC submitted that an institution issuing a records notice
would be required to reach agreement with the collecting society regarding the
form of record keeping system or, failing that, apply to the Copyright Tribunal
for determination.
1.20
Labor Senators agree with the AVCC's assertion that this will have
enormous costs consequences for the education sector and, further, that there
appears to be no reason to impose this burden on the education sector when
there is no evidence that the current records option is not working. Labor
Senators agree that the proposed amendment gives further bargaining power to
copyright owners and undermines the interests of important educational users in
Australia who have not been consulted on such a proposal.
Review of impact of changes
1.21
Labor Senators support the majority's recommendation in relation to a
two-year review on the proposed changes to the Copyright Act by the Bill.
However, in making such a recommendation, Labor Senators note that this represents
a 'second-best' and belated approach to attempt to counteract the inherent inadequacy
of this package of reforms.
Recommendation 1
1.22
Labor Senators recommend that the strict liability provisions in
Schedule 1 of the Bill be removed, pending a comprehensive examination by the
Federal Government of their intended operation.
Recommendation 2
1.23
Labor Senators recommend that the time-shifting and format-shifting
provisions of Schedule 6 of the Bill be amended to recognise all current and
legitimate uses of technology, including format-shifting from podcasts and
webcasts.
Recommendation 3
1.24
Labor Senators recommend that the time-shifting and format-shifting
provisions of Schedule 6 of the Bill be amended to enable copying for personal
and domestic use to occur in places other than domestic premises, including
legitimate places of business.
Recommendation 4
1.25
Labor Senators recommend that Schedule 6 of the Bill be amended to clarify
that the time-shifting and format-shifting exceptions permit sufficient copies
to be made and stored for reasonable use of legitimate products.
Recommendation 5
1.26
Labor Senators recommend that Schedule 6 of the Bill be amended to
remove proposed changes to the exception relating to fair dealing for research
and study, so that existing section 40 of the Copyright Act 1968 is
retained in its entirety.
Recommendation 6
1.27
Labor Senators recommend that Schedule 6 of the Bill be amended to
remove the 'commercial availability test' from the exception relating to
official copying of library and archive material.
Recommendation 7
1.28
Labor Senators recommend that Schedule 11 of the Bill be amended to
remove proposed paragraphs 135K(1)(b)(c) and (d), and proposed paragraphs 135ZX(1)(b)(c)
and (d) in relation to records notices.
Senator Patricia
Crossin Senator Linda
Kirk
Deputy Chair
Senator Joseph
Ludwig Senator
Kate Lundy
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