A Rosey Future Ahead? - EU Commission Addresses Copyright for 2016

As the year is nearly coming to a close, this writer thought it would be pertinent to set our sights for the coming year. 2016 will hopefully be one of further advancement, change and full of cases detailing the law in more intricate, nuanced and better ways. It is always interesting to get perspectives on future changes from the legislature, and such thoughts were shared by the EU Commission and its initiatives on copyright for copyright.

A more modern, more European copyright framework

The framework where copyright operates has gone through a massive sea of changes, not only in terms of the media covered and people's interaction with that media, but also the technological advancements that have effectively redefined human interaction, media consumption and our perception of the world. With this change a strong, but malleable approach to reform would need to be adopted, and as countries have taken their steps towards a newer copyright regime, a EU-centric change was also needed. The EU Commission, as stated above, has brought forth several points of reform, introduced in their press release only a handful of days ago, aiming to modernise the copyright rules in the Union.

Widening access to content across the EU

The Commission envisions the enablement of EU citizens to take their paid-for (or subscribed-to) content with them in the Union, or as the press release states: "[the] aim[] [is] to allow a better circulation of content, offer more choice to Europeans, to strengthen cultural diversity and provide more opportunities for the creative sector". Arguably this would be a tremendous improvement and a move for the harmonization of copyright within the EU, accessibility to content, and to expand the markets beyond their respective national borders.

This, per the proposal released some time ago, would be achieved through an obligation on Member States to enable their citizens to access online content services (defined the same as in Directive 2010/13/EU or as a service, both paid for or not, whose main feature is the provision of access and use of copyright works) when they are temporarily out of the country the service originally is provided.

How this is implemented in each Member State, and whether any restrictions will be added to post-proposal, will remain to be seen, but this writer believes this would be a huge leap forward in harmonizing the internal market, and to enable paying customers to access the services and/or content they have duly paid for.

Exceptions to copyright and creating a fairer marketplace

The Commission also sets out an intent to assess the exceptions that apply to copyright protected works, specifically in relation to education, research (data mining, specifically) and the use of such works by disabled individuals. They also aim to provide further clarity to the legal standing of images uploaded by internet users of monuments (this issue discussed more here).

It was the day that Sally had foreseen, and was dreading, all along

It is hard to say what the Commission is set to change or clarify, but this writer will express his concern for the latter point on images featuring monuments and their possible status as infringing or non-infringing works. The spread and dissemination of information is important, as well as individual expression through photographical works, and the dissuasion or illegality of such expression would be worrisome.

The Commission also wants to tackle the remuneration of content creators in the online sphere, specifically in relation to news aggregators, and will "...analyse whether solutions are needed at EU level to increase legal certainty, transparency and balance in the system that governs the remuneration of authors and performers in the EU, taking EU and national competences into account".

This was addressed in more detail in their communication as an examination of "...whether action is needed on the definition of the rights of ‘communication to the public’ and of ‘making available’... [and] whether any action specific to news aggregators is needed, including intervening on rights". This area of the law is still quite murky, and further clarification and potential legislation might be needed to balance the current arguable free-for-all in the online space regarding news aggregation.

Fighting piracy

Finally, the Commission wants to go further in the enforcement of copyright against possible pirates, engaging in a public consultation on the matter with all stake-holders (focusing on the efficacy of Directive 2004/48/EC). Additionally it will include considerations on "...how to make the removal of illegal content by online intermediaries more efficient".

Their objective is clearly a 'follow-the-money' approach, however a strict, DMCA style weaponry could leave legitimate entities and/or fair dealing without proper protection. As their communication states: "...the Commission will assess options and consider by autumn 2016 the need to amend the legal framework focussing on commercial-scale infringements, inter alia to clarify, as appropriate, the rules for identifying infringers, the application of provisional and precautionary measures and injunctions and their cross-border effect, the calculation and allocation of damages and legal costs".

This writer hopes that the review process proposed by the Commission above remains fair and balanced, and remains hopeful things will be fine down the line. Nevertheless, 2016 should be an exciting time for copyright, and we will all undoubtedly stay interested in the proposed regulations that will be put forth.

Source: IPKat  

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.

The Future of Copyright in Australia?

With the release of the Australian Law Review Commission's Discussion Paper on Copyright and the Digital Economy just a mere few days ago, I thought it'd be a good vehicle through which to look at the prospects of Australian fair dealing. The Paper is merely a discussion of the points brought up by the ALRC and invites other parties to submit their opinions on the points brought forth, but nonetheless provides some great insight as to the possible changes in the Australian law in the coming years.

The Future of Fair Dealing

The ALRC frames the need for change in fair dealing as a part of the new digital economy, where consumers and companies alike are going progressively more and more digital. People consume less physical goods as opposed to their digital counterparts every year. With improvements in Internet speeds and availability in most countries (notably the NBN here in Australia in coming years), this does make sense. Old laws which applied predominantly to physical goods don't relate to this sphere anymore. Users also want to be able to disseminate that content, and with services like YouTube being an avenue to showcase your creativity to the masses, the law should adapt (a great TED Talk by Lawrence Lessig spoke about this some 6 years ago). The Canadians have shown the way forward, but other nations are still trailing. Even the ALRC admits that "there is now more of an appetite for a broad, flexible exception to copyright".

Fair dealing should be flexible, adaptable and mold according to the needs and wishes of the changing environment we live in. Technology is changing at a hugely rapid rate, and fair dealing has failed to change with it. As many have pointed out in their early submissions to the ALRC, the law should be an open-ended list, not merely a short hand-down list of very specific categorical possibilities with no amount of leeway. As was so eloquently said in the submissions, the law should "respond to future technologies, economies and circumstances that don’t yet exist, or haven’t yet been foreseen". Should Australia go the way of the United States? I wouldn't argue to opt for a carbon copy, but some elements have to be taken from the US approach, possibly allowing for a more open catch-all provision for fair dealing should an act fall outside of the permitted exceptions today. This would allow flexibility, yet still retaining the fair dealing we have today.

Submission also dealt with the possible impact of proper fair dealing provisions and how they would allow for more innovation and create space for creative industries to blossom more. Arguably this is completely true, as the possible use of a few seconds of a film or even a few chords from a song can potentially amount to infringement. The attitude seems to have shifted from a defensive position to an offensive position, changing copyright legislation from a shield to a sword. My argument would be for strong fair dealing provisions, allowing for a balance between creators and rights owners, taking the position back to the legitimate protection of content, not the pure 'cashing-in' on the popularity of something through litigation. Submissions to the ALRC also seem to agree that proper fair dealing provisions "counterbalances what would otherwise be an unreasonably broad grant of rights to authors and unduly narrow set of negotiated exceptions and limitations". 

One has to also point out a disconnect between what consumers think they can do and what they actually can do by law. Also the ambiguity as to the extent of the existing provisions does not aid this. Submissions point out that there is a "growing mismatch between what is allowed under
copyright exceptions, and the reasonable expectations and behaviour of most people as a significant problem". When thinking about this one can understand that the rift between what people want to be able to do with their content and what they can do has been growing for some time. This again is attributed to the inability for the law to change and evolve according to the needs of the people, and due to the pendulum of protection firmly swaying towards the rights owners. In the words of Google's submission: "flexible and technology-neutral exceptions permitting consumers to make personal uses of legitimately purchased content would greatly restore people’s faith that the law makes sense"

As there were calls for the improvement of fair dealing, so were there calls for its adequacy and the lack of a need for change. Some submissions stated that "the existing exceptions are adequate and appropriate... [and] the common law was capable of addressing the needs of promoting innovation". I would personally wholly disagree with this. Current fair dealing provisions do offer ways for the use of copyrighted materials, but their limited scope and the absence of proper user-generated content provisions shows a lack of adaptability to the digital world. Also some submit that it "has not been shown that the Australian common law system is incapable of addressing the needs of promoting innovation through case law development". Again, I would disagree, as this distorts the separation of powers; the courts are there to apply the law, not to make it. It should not be up to judges to have to adapt the law - the law should adapt before for the need for the judiciary to do so through interpretation.

Some submissions also call against more open-ended fair dealing provisions, as through their opinion, this would create expense and uncertainty as to the law through the lack of clear-cut rules or categorized exceptions. I will partially agree with this position, although purely for the possibly ambiguity of the law. More relaxed or undefined fair dealing provisions would initially lead to a lack of clear borders as to their application, but as has been shown by the US, the judiciary will in time set its boundaries and a standard of 'fairness' would be set. What this initial confusion allows for is the better future adaptability of the law, giving the judiciary the power and ability to change existing standards according to new wishes by consumers or technological changes. The costs for possible litigation could potentially go up, but as I personally lack the knowledge in this area I cannot say exactly whether this would hold true.

Proposals for Reform

The ALRC seems to agree with the position that flexibility is desired and that it would assist innovation. A possible "fair use regime will: employ technology neutral legislative drafting; assist predictability in application; minimise unnecessary obstacles to an efficient market; and reduce transaction costs".

The 'fair use' provision suggested by the ALRC would be determined through four factors (however the list of factors would be left open-ended): the purpose and character of the use; the nature of the copyrighted work; the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and the effect upon the market for or value of the copyrighted work. These factors would be the same as what is used in the US at the moment, and don't differ much from the existing factors used in Australia (specifically related to research and study). This approach would be substantially very similar to the current standard employed by the Canadians through CCH. Arguably this would be the best position to go from, as standards could be applied through the use of US and Canadian decisions to help establish an Australian standard much quicker, causing less ambiguity in the provision's extent.

The Commission also suggests a non-exhaustive list approach, including current provisions and adding ones dealing with for example non-consumptive uses, quotation and education. Providing a list of possible exceptions would also take some amount of uncertainty away from any fair use provisions as then there would be clear situations when the use would be fair, yet still allowing for that provision to grow and change should it need to. How far should the list go will ultimately be up to the legislature and it will surely develop through the courts once unknown or unforeseen uses arise.

Should no fair use provision be enacted, the ALRC has submitted that there should be a right for private and domestic use. The current law does allow for format-shifting, time-shifting and space-shifting, however a more open and technology-neutral approach should be taken. Some submit that "expanding the private and domestic use permitted under copyright law would simply legalize what consumers are already doing". One could easily argue that this is both sensible and would reduce the instances of unnecessary litigation. As said, how people use their legally bought content has changed and attitudes towards the use of your own purchased content should change accordingly, with the law reflecting that change. The ALRC argues that "fair use and fair dealing exceptions with fairness factors considered, are likely to be able to better account for the differences in markets and technologies between types of copyright material and different types of uses", and I would personally agree. A wider fair use provision would not only account for existing uses, but would accommodate future uses better such as cloud computing.

The Future?

To conclude, you have to ask the question, what will be the changes implemented, or whether they will be implemented at all. At this point things are uncertain, but the ALRC's work seems to bode well for the potential changes in copyright law and fair dealing. The final draft of the report due to be published at the end of November this year. Whether Parliament takes the initiative and makes changes to the current legislation will remain to be seen, and we shouldn't expect any changes immediately. Calls for change have been loud and abundant, and should the Australian Parliament not act on this, the nation could be held back when compared to the rest of the world. With the implementation of the NBN in the coming years, this would act as even more of an incentive to amend the law before the nation is set to be able to access the Internet through faster and more reliable means. If the law takes the leap before this, Australia would be fully able to utilize this new avenue and take a step forward in the world of copyright.