On 5 June 2013, the Australian Law Reform Commission (ALRC) released its Discussion Paper on copyright and the digital economy.
In the Discussion Paper, the ALRC has proposed some radical changes to Australian copyright law, which would have far-reaching consequences for Australian content creators, and for people using copyright content (including teachers and people with a disability).
REPEAL OF STATUTORY LICENCES
Australian copyright law includes a number of ‘statutory licences’ that allow uses of copyright content without permission, provided there are arrangements for fair payment to content creators. Copyright Agency is appointed by the Australian Government to manage statutory licences for the use of text and images by the education sector and by the government sector. It is also appointed to manage the statutory licence for people with disabilities, which does not involve any payment.
The ALRC has recommended that all these statutory licences be repealed, and be replaced with free exceptions and ‘voluntary’ licensing arrangements for uses not covered by free exceptions. It anticipates that these would be available from individual content creators or on a collective basis. It says that voluntary licences are ‘less prescriptive, more efficient and better suited to a digital age.’
Despite the ALRC’s inquiry being about copyright and the digital economy, this and other proposals would apply to non-digital as well as the digital uses of content. Surveys of usage indicate that most uses of content under statutory licences are still hardcopy (photocopying and printing), and it is not clear how the ALRC’s rationale in relation to digital use applies to non-digital use.
The recommendations reflect submissions made on behalf of the education sector representatives responsible for negotiating licence fees under the statutory licences. The implications of the proposals for those relying on the licence for their work (such as individual teachers, or bodies assisting people disabilities) in terms of access to content and compliance requirements are not addressed in the report.
A NEW EXCEPTION FOR ‘FAIR USE’
The ALRC also proposes that Australia introduce a new exception for ‘fair use’, similar to that operating in the US. Australian copyright law has many exceptions for specific purposes, including ‘fair dealing’ exceptions that allow things like research, criticism, parody and reporting news.
A fair use exception would allows uses for purposes other than those listed in the legislation, if they meet the ‘fairness’ criteria. In the US, it has been argued that fair use applies to large-scale uses, and to commercial uses. For example, Google argues that its book digitisation project is allowed under the fair use exception (an argument that is yet to be considered by a court). While many argue that the exception has desirable ‘flexibility’, it is also widely acknowledged that its application is uncertain, and that the outcome of legal proceedings about its application is difficult to predict.
The ALRC proposes that the fair use exception include a list of ‘illustrative’ purposes, but that it could apply to other purposes not listed. Some of those purposes are already covered by existing exceptions, which would be replaced by the fair use exception: research, study, criticism, review, parody, satire, reporting news. Some are partly covered: private and domestic use, ‘non-consumptive’ use (such as some caching and automated temporary copies). And some are new: quotation, education, public administration.
The extent to which a fair use exception might apply to a use covered by a licensing solution is an important issue.
Proposals include a licensing solution for ‘mass’ digitisation of content in collections, and some new conditions relating to supply of electronic documents by libraries.
SPECIAL EXCEPTIONS FOR ARTWORKS
The ALRC was asked to repeal or limit some special exceptions that apply only to artworks. These include photographing public sculptures, and artworks included ‘incidentally’ in films and videos. It invites views on whether these activities should be covered by the proposed fair use exception instead, but also proposals that the ‘incidental filming’ exception be extended to broadcasting over the internet.
The Discussion Paper also make proposals on a range of other issues, including orphan works, broadcasting, and provisions in contractual arrangements that purport to prohibit or limit a person relying on a copyright exception.
We will be providing further information over the next weeks. See also:
RESPONSES DUE 31 JULY
Responses to the Discussion Paper are due by 31 July. The ALRC will also be engaging in consultations. Its final report is due at the end of November.