Simpsons Solicitors

All’s fair …

February 20th 2014

The Federal Attorney-General has now tabled the Australian Law Reform Commission’s report into Australia’s copyright exceptions, and a recommendation that Australia introduce a “fair use” exception gets top billing.

Weighing in at a hefty 478 pages, as expected, the report’s primary recommendation is that Australia incorporate a “fair use” exception into its copyright law or (as an alternative) widen the scope of the “fair dealing” defence. The report notes that, were fair use implemented, then some 30 existing exceptions could be repealed (and, in time, possibly more, leading to a Copyright Act that (in the words of the report) is “considerably more clear, coherent and principled“.

One of the major differences between the final report and the discussion paper that was released for public comment in June 2013  is that the final report does not advocate for a repeal of statutory licences (and particularly for the licences that permit educational institutions and governments to use copyright material without permission). In the view of the ALRC, the statutory licences should be retained, but they need to be streamlined and made less rigid and prescriptive. Accordingly, the final report recommends that much of the content of those licences should be agreed between the parties and not set out in the legislation.

Other recommendations include:

limiting the remedies available where material is “orphaned”, so as to encourage its use;
enacting that contractual limitations preventing libraries and archives (including museums and galleries) from relying on relevant exceptions be unenforceable;
clarifying and expanding when libraries and archives (including museums and galleries) may use copyright material for preservation purposes;
introducing exceptions for where copyright material is used for tribunals and royal commissions and for reporting on these; and
providing for where statutes require governments to give public access to copyright material and for where government receives correspondence and other material.

Depending on the extent to which the report’s recommendations are implemented, the report has important implications to anyone who either creates or works with copyright material.

The report is available on the ALRC’s website at:

http://www.alrc.gov.au/publications/copyright-report-122

A smaller (32 pages) summary report is also available:

http://www.alrc.gov.au/publications/copyright-and-digital-economy-alrc-122-summary

If you have questions about how the report (if implemented) might affect you, contact copyright lawyer Adam Simpson or Ian McDonald (Special Counsel, Copyright) at Simpsons Solicitors.