Recently this writer posed a question to Lawrence Lessig, a current lecturer at Harvard and a person of much acclaim in the copyright field, on the website Six Question as to the future of copyright in his mind. More specifically the question posed was: "What do you think is the future of copyright, especially in light of recent developments in other common law countries such as the UK and Australia?" This clearly relates to the avalanche of copyright reviews being conducted in the common law countries such as Australia, the United Kingdom and Ireland. To this writer's pleasant surprise the question was thought to merit an answer, and one was provided by Mr. Lessig a few days ago. Albeit brief, his thoughts do merit some discussion.
In Mr. Lessig's mind "...the future of copyright is up for grabs"; and this can be said to be very true. Where copyright will be taken, and how evolving technologies will both impact and potentially necessitate the possible change, is wholly up for grabs. A certain desire for change can be felt in the public mindset, and rightfully so, as how we consume media has changed radically since the enactment of most copyright laws in the past 30 years. Much like was noted in the preliminary thoughts over the UK copyright modernization, it aims to "...align the law with behaviour most people consider to be reasonable", at least in the context of evolving media. This matches well with Mr. Lessig's thoughts as well: "...[the US] regime needs to be radically updated to the 21st century to digital technologies".
But the future of copyright is not without its uncertainty according to Mr. Lessig: "The biggest problem we have now is that nobody in government, at least in America, is interested in having that conversation [about copyright reform]". What this can be argued to relate to is a reluctance to expand or extend fair use. The current wave of reform clearly is focusing on a change for much more free and flexible approach to the consumption of copyrighted media. Extending those rights could diminish the profits of copyright holders, or at least extinguish secondary avenues of revenue through the restriction of fair use. Corporate lobbyists have fought over the current change in Canada, which quite heavily is beginning to endorse fair use, showcasing a possible rationale for the restriction over the discussion about copyright reform in the US.
Finally, Mr. Lessig notes that "...the battles here are really as much battles about how to open up a conversation about what the right answer is". How would one initiate such a conversation? Quite frankly, there is no clear answer as to how this could be done. The change a lot of common law countries are facing, and the discussion around the reform, will undoubtedly put pressure on the review of US copyright legislation, at least on an international setting. The more people use media as they see as "proper", the more it also merits discussion on the fact. What can be said as a counter-acting interest is one which Mr. Lessig also points out: "...[the legislature] see[s] copyright as an opportunity to produce incredible wealth for campaigns". The acquisition of campaign funds is highly important in the US system, and clearly inhibits the proper function of the legislature as the protector of its peoples' interests, rather than those who fund their campaigns.
The future of copyright is uncertain, but in that uncertainty one can have hope and optimism. With the change that is occurring all over the copyright world, US change seems all but inevitable. Where that change will take copyright within our American friends' regime is very unclear, and the competing interests on both sides seem to have their position firmly entrenched. This writer, much like Mr. Lessig, is optimistic as to the future.
I would like to thank Lawrence for taking the time to answer my question, and hope this can inspire some more discussion around copyright in the near future.
Showing posts with label future. Show all posts
Showing posts with label future. Show all posts
08 October, 2013
Rethinking The Role of Intellectual Property
The role of IP laws and the framework it currently resides in has been debated for decades, and with changes looming in both Australia and the UK, this discussion has been further highlighted. In a recent lecture (a transcript of which can be found here) at the University of Melbourne, Dr. Francis Gurry, the Director of WIPO presented his thoughts on the future of IP.
Dr. Gurry's opening statement set the stage for the topic well, presenting the volatile changes intellectual property has gone in recent years: "...the context in which intellectual property operates in the contemporary world is vastly different from that in which IP was born and that new context has changed the position of intellectual property in the economy and it’s changed it in society, and I think it should cause us to rethink the role that we give to intellectual property." This change has manifested in many ways, such as the digitization of media, the emergence of the Internet and recently the Cloud.
The role IP has played was laid out well by Dr. Gurry. According to him IP is both a private good, where information and knowledge serve as a vehicle for personal gain, but they are also a public good in consumption. In the case of the latter, information and knowledge can be enjoyed and used by others without lessening the value of the information or knowledge itself for the producer of it. The current IP framework serves as a way to protect commercial interests by limiting its public consumption, in order to recuperate the costs that were incurred through its creation, or as was incredibly eloquently put by Dr. Gurry: "It thereby creates an economic incentive to investment in knowledge creation and provides a safe passage through hostile terrain for the long and often lonely march of an idea from conception to commercial implementation as a new product, service or process." This aspect is important, as it creates the possibility of the creation of that information or knowledge to begin with, especially in a modern society where basic human needs are only met through the acquisition of money.
IP does provide another interesting benefit, one which most undoubtedly overlook as a result of the heavy emphasis on the commercial aspect of IP. This is the opening up of knowledge, and the ability to build on old information; more specifically relating to patents. Dr. Gurry expanded on this with an example of the patent relating to the saxophone, one which was subsequently built on, used to create something new and to arguably improve the initial patent itself. Contrasting this is the loss of knowledge in how old masters made violins, such as Stradivari and Guarneri, as without any open and accessibly information to their specifics their methods still allude even modern manufacturers. The patent system has also created an amazing database of human invention, both past and present, for future generations to use and study. This availability of information clearly can be argued to counter-balance any commercial interests relating to patents themselves, showcasing the amazing things that proper IP schemes can create.
The status quo aside, Dr. Gurry does point out that "...much has changed in the world... [and the changes] should cause us to add certain other responsibilities to the job description of IP in order to reflect better the position of IP in the contemporary economy and society". This is caused by the ever-growing intangible nature of new IP, a shift in the economic marketplace from the West to the East, and the empowerment of non-State factors through the Internet. These affect how and why companies invest in certain types of IP and how they engage with the information they already own, such as shifting towards a more knowledge-based investment plan, providing a competitive edge, whereas some decades ago physical capital was king. Also the shift from West to East has, for the first time, presented a world where the East is slowly catching up with the West in the production and creation of both information and knowledge. Finally non-State factors play a huge part in the impact that individuals and collectives can have on all types of IP, more notably the denial of SOPA (Stop Online Piracy Act) in the US. How and why new networks impact this framework is new and presents and interesting paradigm of interaction.
So how should this change be addressed in the field of IP? Some geographical and geopolitical issues have to be tackled, according to Dr. Gurry. The impact IP has on any country's economy harbors a culture where countries attempt to attract talent, and even conduct espionage to attain secrets relating to new developments. This culture would have to be addressed before it becomes a problem, potentially through international agreements relating to the acquisition of talent and the limiting of any illicit activities. What IP will encompass, and does currently, might also need addressing. This means that, according to Dr. Gurry, "[t]he boundary between science and technology, or discovery and invention, is more and more difficult to draw, especially for lawyers" - creating uncertainty over what subject matter IP would cover, as shown by the recent battle over gene patents. Dr Gurry also raises some concerns should any given legislature or judiciary overlook the public's opinion in this matter: "If IP, whether through the legislature or the judiciary, takes decisions about 'appropriability' that are not in consonance with the sentiment of the general public, it will lose the social credibility on which all good regulation depends". Some signs of detachment can be noted, especially with some opinions pointing to even the abolishment of the current copyright regime. This can lead to problems in the long-run.
Finally access to IP has to be addressed, where Dr. Gurry points out two competing interests: "For policy-makers, the challenge will be to try to orchestrate an informed and reasonable public debate [over access to IP]. For corporations, the challenge will be to balance being competitive and getting a financial return on investment, on the one hand, with management of a potentially hostile public response, on the other hand". A balance between the two would be incredibly challenging to create, and it would have to periodically be addressed, as one can see from the current imbalance in especially copyright relating to fair dealing for example.
At the end of the lecture Dr. Gurry does leave us with something to think about:
Dr. Gurry's opening statement set the stage for the topic well, presenting the volatile changes intellectual property has gone in recent years: "...the context in which intellectual property operates in the contemporary world is vastly different from that in which IP was born and that new context has changed the position of intellectual property in the economy and it’s changed it in society, and I think it should cause us to rethink the role that we give to intellectual property." This change has manifested in many ways, such as the digitization of media, the emergence of the Internet and recently the Cloud.
The role IP has played was laid out well by Dr. Gurry. According to him IP is both a private good, where information and knowledge serve as a vehicle for personal gain, but they are also a public good in consumption. In the case of the latter, information and knowledge can be enjoyed and used by others without lessening the value of the information or knowledge itself for the producer of it. The current IP framework serves as a way to protect commercial interests by limiting its public consumption, in order to recuperate the costs that were incurred through its creation, or as was incredibly eloquently put by Dr. Gurry: "It thereby creates an economic incentive to investment in knowledge creation and provides a safe passage through hostile terrain for the long and often lonely march of an idea from conception to commercial implementation as a new product, service or process." This aspect is important, as it creates the possibility of the creation of that information or knowledge to begin with, especially in a modern society where basic human needs are only met through the acquisition of money.
IP does provide another interesting benefit, one which most undoubtedly overlook as a result of the heavy emphasis on the commercial aspect of IP. This is the opening up of knowledge, and the ability to build on old information; more specifically relating to patents. Dr. Gurry expanded on this with an example of the patent relating to the saxophone, one which was subsequently built on, used to create something new and to arguably improve the initial patent itself. Contrasting this is the loss of knowledge in how old masters made violins, such as Stradivari and Guarneri, as without any open and accessibly information to their specifics their methods still allude even modern manufacturers. The patent system has also created an amazing database of human invention, both past and present, for future generations to use and study. This availability of information clearly can be argued to counter-balance any commercial interests relating to patents themselves, showcasing the amazing things that proper IP schemes can create.
The status quo aside, Dr. Gurry does point out that "...much has changed in the world... [and the changes] should cause us to add certain other responsibilities to the job description of IP in order to reflect better the position of IP in the contemporary economy and society". This is caused by the ever-growing intangible nature of new IP, a shift in the economic marketplace from the West to the East, and the empowerment of non-State factors through the Internet. These affect how and why companies invest in certain types of IP and how they engage with the information they already own, such as shifting towards a more knowledge-based investment plan, providing a competitive edge, whereas some decades ago physical capital was king. Also the shift from West to East has, for the first time, presented a world where the East is slowly catching up with the West in the production and creation of both information and knowledge. Finally non-State factors play a huge part in the impact that individuals and collectives can have on all types of IP, more notably the denial of SOPA (Stop Online Piracy Act) in the US. How and why new networks impact this framework is new and presents and interesting paradigm of interaction.
So how should this change be addressed in the field of IP? Some geographical and geopolitical issues have to be tackled, according to Dr. Gurry. The impact IP has on any country's economy harbors a culture where countries attempt to attract talent, and even conduct espionage to attain secrets relating to new developments. This culture would have to be addressed before it becomes a problem, potentially through international agreements relating to the acquisition of talent and the limiting of any illicit activities. What IP will encompass, and does currently, might also need addressing. This means that, according to Dr. Gurry, "[t]he boundary between science and technology, or discovery and invention, is more and more difficult to draw, especially for lawyers" - creating uncertainty over what subject matter IP would cover, as shown by the recent battle over gene patents. Dr Gurry also raises some concerns should any given legislature or judiciary overlook the public's opinion in this matter: "If IP, whether through the legislature or the judiciary, takes decisions about 'appropriability' that are not in consonance with the sentiment of the general public, it will lose the social credibility on which all good regulation depends". Some signs of detachment can be noted, especially with some opinions pointing to even the abolishment of the current copyright regime. This can lead to problems in the long-run.
Finally access to IP has to be addressed, where Dr. Gurry points out two competing interests: "For policy-makers, the challenge will be to try to orchestrate an informed and reasonable public debate [over access to IP]. For corporations, the challenge will be to balance being competitive and getting a financial return on investment, on the one hand, with management of a potentially hostile public response, on the other hand". A balance between the two would be incredibly challenging to create, and it would have to periodically be addressed, as one can see from the current imbalance in especially copyright relating to fair dealing for example.
At the end of the lecture Dr. Gurry does leave us with something to think about:
"If you were in the 18th or the early 19th century, new wealth was being created, in new ways and on a rather massive scale, by physical capital and the process of industrialization. Industrialization spawned the great ideological debates and cleavages that shaped the world for the next 200 years – capitalism, Marxism, communism, socialism – and they all centered on property, the control of property and its use by the State and citizens. Now, in the early 21st century, new wealth is being created, in new ways and on a rather massive scale, by intellectual capital and virtualization. This is what we are seeing in what I have described – the contours of the new ideological battle lines that will shape our world for the foreseeable future."Source: IP Australia
09 June, 2013
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.
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.
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