27 February, 2014

Australian Copyright and the Future - The Digital Economy

As was discussed on this blog some 8 months ago, the Australian Law Review Commission released its Discussion Paper on the future of copyright in Australia as a precursor to its final report on the topic. Finally, after what seems forever to this writer, the Commission has released its report titled Copyright and the Digital Economy, discussing its recommendations for future legislation in Australia.

The report is very thorough, and clearly focuses on fair use and exceptions to copyright infringement, signaling a well-needed change to the law in light of changes which have taken place in the last 20 years, especially within the scope of copyright. This is illustrated well by the Committee's intention for this review: "The law must be relevant to a complex and changing digital environment, but must also be clear and broadly understood in the community. The law must produce reasonably certain and predictable outcomes, but should be flexible and not inhibit innovation". Due to the report's extensiveness, as usual, this writer will only discuss certain aspects of it. Should you wish to, please read the report in full for a much broader and detailed understanding of the reforms proposed.

Introduction of Fair Use?

A principle which has been well established in the United States, fair use, has been discussed in terms of implementation in a number of common law countries. Fair use can be said to be very flexible, and mouldable, to a variety of technologies and uses in relation to copyrighted works. The ALRC has been discussing the introduction of fair use into Australian copyright legislation, and finally has put forth a recommendation to do so. In their view "...a fair use exception with a non-exhaustive list of four fairness factors to be considered in assessing whether use of another’s copyright material is fair and a non-exhaustive list of eleven illustrative purposes" should be implemented into Australian law.

The importance of introducing fair use can be argued to be sensible, and as the ALRC express: "...fair use differs from most current exceptions to copyright in Australia in that it is a broad standard that incorporates principles, rather than detailed prescriptive rules". Utilizing more broader, less defined principles allows for fair use to apply to newer, more advanced uses of copyright today and in the future. This writer agrees fully with the ALRC and their recommendation, especially in light of changes in the field of copyright in recent years. What copyright, and fair dealing, has been yearning is just that, and would bring copyright into the 21st century.

The proposed provision would be very similar to the aforementioned US provision, taking into account the the purpose and nature of the work's use, while assessing both the availability of the work and the use's effect on the work's market share. The provision would clearly take more direction from US precedent, while still allowing for Australian courts to adapt it in a more Australian context.

New Fair Dealing

Although fair dealing has been used under Australian legislation for a number of years, the provision has fallen behind on what can be deemed to potentially be included within it in modern times. The new proposed additions to the provision would add six new categories included under fair dealing: quotation, non-commercial private use, incidental or technical use, library or archive use, education, and access to people with disabilities. How fair dealing differs from fair use is explained well by the ALRC: "Under fair use, the list of purposes, or types of use, is merely illustrative. The fact that a particular use is not for one of the illustrative purposes does not mean that the use cannot be found to be fair. Fair use essentially asks one question: Is this use fair, considering the fairness factors? The new fair dealing exception, on the other hand, can only apply to a use of copyright material if the use is for one of the prescribed purposes. If a given use does not fall into one of the categories of use, then it cannot be found to be fair". In this writer's opinion the former suggestion would work much more effectively and flexibly in modern copyright, and even though a proposed newer fair dealing provision could fulfill the needs of copyright as uses stand right now, it still does not provide an equal exception in comparison to fair use.

Other Changes

Orphan works have been a thorn in copyright's side for a long time, with provisions only being introduced to mitigate infringement over works where the copyright owner cannot be found. As the ALRC sees that the introduction of such  reforms would "...facilitate the use of orphan works to enable their beneficial uses to be captured in the digital economy, without creating harm to the copyright holder". Arguably this is something that copyright needs, and changes to the laws governing orphan works are necessary.

While the report goes into more specific details in relation to the aforementioned potential changes to both fair use and fair dealing, the report does also provide other changes which it endorses. Due to the report's extensive dealing of these changes, this writer cannot simply fill discussion of all of the rest.

All in all the report is thorough and recommends changes which have been long overdue, and not just in Australia. How and if these recommendations are implemented will be left to the Australian legislature, but the introduction of fair use should merit some haste. The 21st century has been a challenging one for copyright, and not just from a copyright holders' perspective, but as the reform recommendations keep rolling in, it seems the law might finally catch up to what it should have been some time ago.

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