ALRC Releases Final Report on Copyright and the Digital Economy
Friday 14 February 2014 @ 12.01 p.m. | IP & Media | Legal Research | Trade & Commerce
Previously, we have reported that the Australian Law Reform Commission (ALRC) had completed and presented its report Copyright and the Digital Economy (see ALRC Report 122) to the new Attorney-General at the end of November 2013 as it was required to do by its Terms of Reference. Yesterday (13 February 2013) by way of a media release the ALRC advised that its Final Report was now publicly available.
The ALRC's Reference
The ALRC's reference was to consider whether current copyright exceptions "are adequate and appropriate in the digital era".
The ALRC's Recommendations
The media release quotes ALRC President, Professor Rosalind Croucher saying generally of the report that the 30 recommendations in the report are designed to "allow for a more principles-based and less prescriptive approach to copyright law". The reforms are intended to "protect [content] creators and their markets, provide appropriate access to material, simplify and modernise the law, and create a better environment for innovation and economic development."
A key and possibly, the most contentious recommendation of the report is the proposed introduction of "fair use" to Australian copyright law. The term "fair use" refers to a defence to copyright infringement that essentially asks of any particular use of copyright material: "Is this fair?"
Fair use is found in a number of countries, the most prominent being the USA. The concept is not unknown in Australia where existing laws do allow the "fair use" of copyright material for purposes such as research, study and reporting the news but what the ALRC proposes would be a much wider application of the defence.
Professor Jill McKeough who headed the inquiry is quoted in the media release as saying:
"Fair use is a flexible exception that can be applied to new technologies and services, which is crucial in the digital economy . . . Fair use can facilitate the public interest in accessing material, encourage new productive uses, and stimulate competition and innovation . . ."
Professor McKeough also goes on to say:
". . . fair use also protects the interests of writers, musicians, film-makers, publishers and other rights holders. It was very important that in an inquiry about exceptions to copyright, we not lose sight of the purpose of copyright law."
Other areas of copyright exception recommended in the report are specific exceptions, for libraries and archives to make preservation copies, for judicial proceedings and royal commissions, and for public access to certain documents lodged with government.
The report also recommends reforms to encourage the use of "orphan works" that is, works where copyright holders cannot be found or located — in the ALRC's view a wealth of copyright material is "neglected and wasted because rights holders cannot be found".
Will the More Relaxed Copyright Rules be Enacted?
A report in ITnews seems to indicate that the new Attorney General is quite likely to reject the new or broader concept of "fair use" proposed in the ALRC's report. The article states:
"Attorney-General Senator George Brandis has signalled a knock-back of a key recommendation for a more flexible 'fair use' copyright regime made in today's release of the final ALRC report into copyright, calling it 'controversial'".
The Attorney-General is reported as saying that the government holds the view that
"copyright should protect the rights of content creators, and not [be] changed merely because of the emergence of new media technology or new platforms . . . Principles did not change with the invention of the internet . ."
The Government is still to fully consider the report's recommendations. However, reaction to Government's Views as put by the Attorney-General is reported by ITnews as not being in agreement. For example, Choice CEO Alan Kirkland quoted by ITnew in its report is of the view that Australian Copyright Law is "legislation designed to be broken by consumers" pointing out that even with reforms it 2006, current copyright laws fail to address even common technologies like DVDs.
The fate of the ALRC's report and its transition to legislation particularly in respect of "fair use" will be interesting to follow for those interested in intellectual property law.
TimeBase is an independent, privately owned Australian legal publisher specialising in the online delivery of accurate, comprehensive and innovative legislation research tools including LawOne and unique Point-in-Time Products.
