The Australian Law Reform Commission (ALRC) has released the Issues Paper for its current inquiry into Copyright and the Digital Economy.
Headed by Professor Jill McKeough (Dean of Law at the University of Technology, Sydney), the review is focusing on the suitability of current exceptions and statutory licences in the evolving digital marketplace.
The ALRC seeks comment on a wide range of issues, some of these include:
Time-shifting exceptions and private online use of material
Australian copyright law contains an exception allowing individuals to record TV broadcasts on their own devices for later private and domestic viewing.
Technological developments now allow third-parties to record the broadcasts and store these online in the cloud for the user to then remotely access and view on his or her connected devices. This issue is being considered by the courts in litigation relating to the Optus TV Now service.
There is some debate as to what extent private users can utilise third-parties to record material on their behalf and then communicate this to them via online platforms when relying on the private use exceptions.
Question 9 asks:
(a) should it matter who makes the recording, if the recording is only for private or domestic use; and
(b) should the exception apply to content made available using the internet or internet protocol television?
The increasing pervasiveness of social networking and user–generated online sites and the use of copyright-protected material on such sites gives rise to Question 12 that asks “Should some online uses of copyright materials for social, private or domestic purposes be more freely permitted?” and if so, what limits should be placed on such an exception?
Technical activities such as caching, back-up, data mining and cloud computing
A number of websites and other online enterprises reproduce and communicate copyright material for technical reasons such as operational, data security or data integrity purposes. Australian law is presently unsettled on aspects of such copying.
For example, a search engine may store temporary reproductions (referred to as “caching”) content to power its search platform, or a company that backs up their data or stores it on a cloud-based platform (which involves storing both the data itself as well as copies of that data on various servers in different locations).
Question 4 asks whether copyright law should be “amended to provide for one or more exceptions for the use of copyright material for caching, indexing or other uses related to the functioning of the internet?” If so, how should such exceptions be framed?
Question 6 asks whether copyright law should “be amended, or new exceptions created, to account for new cloud computing services, and if so, how?”
The law is also currently unsettled on the issue of individual users uploading and storing their copyright-protected material with third-party online services. Question 10 asks whether copyright law should “be amended to clarify that making copies of copyright material for the purpose of back-up or data recovery does not infringe copyright, and if so, how?”
At present, Australian copyright law contains “fair dealing” exceptions, which allow copyright material to be used for a number of specified purposes (such as parody or satire and criticism or review).
US law contains a “fair use” provision which allows copyright material to be used without permission but differs from Australian “fair dealing” in that it has a broader, but less certain application that isn’t limited to use for a particular purpose.
Question 52 asks whether domestic law should “be amended to include a
broad, flexible exception? If so, how should this exception be framed? For example, should such an exception be based on ‘fairness’, ‘reasonableness’ or something else?”
Transformative use occurs when a pre-existing work (such as a song, film or image) is integrated into a new work in such a way that it seen in a new light or recontextualised in a new and original way. Some “mashups” are an example of a transformative use. The doctrine is associated with US copyright law relating to “fair use”.
Digitisation of media along with more powerful software tools for manipulating such material has allowed people to create and widely distribute their own mashups, remixes and other works involving manipulation of sound, images and film created by others.
There is no specific “transformative use” exception under Australian law. Rather, those using pre-existing source material must look to general copyright principles and other exceptions (such as fair dealing) or if none apply, then seek permission to use the source material.
Question 15 asks whether “the use of copyright materials in transformative uses should be more freely permitted?”
Contracting out of exceptions
There is some debate about the role of contract and copyright exceptions. Question 55 asks whether copyright law should “be amended to prevent contracting out of copyright exceptions, and if so, which exceptions?”
Additionally, the paper contains questions relating to the efficacy of the current statutory licensing schemes for educational institutions and the special exceptions for libraries and archives, particularly in regard to the evolving digital context.
Submissions to the ALRC are due on 16 November 2012. The ALRC is expected to release its report by the end of November 2013.
The Issues Paper can be downloaded from the ALRC’s website at http://www.alrc.gov.au/publications/copyright-ip42
For a comprehensive table of the exceptions and statutory licences in the Copyright Act, see our information sheet “Exceptions to Copyright” available under “E” from our website at http://copyright.org.au/find-an-answer/browse-by-a-z/
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For inquiries relating to publishing and copyright law please contact Adam Simpson.