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Australia considers copyright reform

February 14, 2014

By Colin Mann

Australia’s Attorney-General George Brandis has tabled the final report of the Australian Law Reform Commission’s inquiry into Copyright and the Digital Economy, which contains a number of recommendations he admits are “controversial”.

He said the Australian Law Reform Commission (ALRC) inquiry was the most significant review of the Copyright Act since the Act came into operation in 1968 and had attracted strong interest with the inquiry receiving over 850 submissions.

The inquiry examined whether exceptions and statutory licences in the Copyright Act 1968 are adequate and appropriate in the digital environment and whether further exceptions should be recommended.

Among other things, the ALRC was asked to consider whether further exemptions should recognise fair use of copyright material.

The ALRC made a number of recommendations arising from its Inquiry.

Notably, the ALRC has recommended the introduction of a flexible fair use exemption as a defence to copyright infringement.

The ALRC has also recommended:

  • Retaining and reforming some existing specific exemptions, and introducing certain new specific exemptions;
  • Amending the Copyright Act to clarify the statutory licensing scheme;
  • Limiting the remedies available for copyright infringement to encourage the use of ‘orphan works’; Reforming broadcasting exemptions; and
  • Amending the Copyright Act to limit contracting out terms.

“These recommendations will no doubt be controversial and the Government will give them very careful consideration,” said Brandis. “We are particularly concerned to ensure that no prejudice is caused to the interests of rights holders and creators, whether the proposed fair use exception offers genuine advantages over the existing fair dealing provisions and that any changes maintain and, where possible, increase incentives to Australia’s creative content producers.”

According to Brandis, Australia’s creative industries are not just a vital part of its culture, they are also a thriving sector of its economy.

“The Australian screen production industry, for instance, contributes $752 million and directly employs 13,000 people in full-time work. Our music industry contributes $1.2billion to our economy and directly employs 15,000 people in full-time work. But those who create the great Australian films, the great Australian television dramas, the great Australian albums, depend upon robust intellectual property laws to protect their creative endeavours. Just like any other workers in our economy, they are entitled to the fruit of their efforts,” he declared.

“Without strong, robust copyright laws, they are at risk of being cheated of the fair compensation for their creativity, which is their due. As I know from my many discussions with members of the industry, they are looking to the Government to ensure that their interests are protected, and this, the Government will do. I want to reaffirm the Government’s commitment to content industries. Not only do they contribute to our economy – they build a culture of innovation and artistic endeavour in Australia.” he stated.

“It is the Government’s strong view that the fundamental principles of intellectual property law that protect the rights of content creators have not changed, merely because of the emergence of new media and platforms. The principles underlying intellectual property law and the values which acknowledge the rights of creative people are not a function of the platform on which that creativity is expressed. In this changing digital world, we must look for the opportunities, but in reviewing the intellectual property laws, the Government has no intention of lessening rights of content creators to protect and benefit from their intellectual property,” he concluded.

Brandis, who is also Minister for the Arts, subsequently told the Australian Digital Alliance forum in Canberra that the illegal downloading of Australian films online was a form of theft. “I say Australian films, but of course the illegal downloading of any protected content is a form of theft,” he said.

According to Brandis, section 101 of the Copyright Act is one potential area for reform that could be used to combat online copyright infringement. Effectively, Section 101 states that an entity which authorises the infringement of copyright without the copyright owner’s permission is liable for that infringement. Brandis also said he would consider reforms to require ISPs such as Telstra and Optus to block websites that hosted copyrighted material.

“The government will be considering possible mechanisms to provide a ‘legal incentive’ for an internet service provider to cooperate with copyright owners in preventing infringement on their systems and networks,” he explained. “This may include looking carefully at the merits of a scheme whereby ISPs are required to issue graduated warnings to consumers who are using websites to facilitate piracy.”

A trial under which ISPs passed on notices of alleged online copyright infringement to their customers was abandoned in May 2013 after iiNet withdrew.

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