Chasing exceptions
With safe harbour reforms at a standstill, will Australia look to restart the engine on its copyright amendments?

A September 2016 report from the Australian Productivity Commission caused a stir by claiming that consumers were bearing the brunt of copyright enforcement in the country.

According to the commission, which had been charged by the Australian government to review whether its intellectual property framework was fit for purpose, improvements were needed across the “spectrum of IP rights” to mitigate against over-zealous enforcement.

A system of user rights and a ‘fair use’ exception were put forward as ways of protecting consumers. These would help to redress the imbalance of copyright, and help stop innovative firms, universities, schools and consumers bearing the cost.

“After 20 years of reviews that have considered this question, the evidence is in: Australia’s existing inflexible, purpose-based copyright exceptions are no longer fit for purpose,” the commission argued.

Fast forward seven months and Australia is poised to pass its 2017 amendment to the Copyright Act of 1968. Outfitted with a range of measures designed to enable fair access to copyrighted material in suitable formats, such as improving accessibility to published material for people with disabilities in line with Australia’s commitments as part of the Marrakesh Treaty, the bill also includes measures for students and educators to use copyrighted material in the digital education environment.

But at the bill’s zero hour, additional provisions included in the legislation, aimed at providing safe harbours to online service providers whose users infringe copyright on their platforms, were pulled. The remaining amendments are likely to pass and receive assent soon.

Mitch Fifield, minister for communications, said the provisions were removed to “enable the government to further consider feedback received on this proposal whilst not delaying the passage of other important reforms”.

The bill was previously criticised by rights holder groups and associations, which rejected the safe harbour amendments, as well as claims the country’s copyright laws are too broad and inflexible.

Rights holder groups, including the Australian Society of Authors and the Australian Recording Industry Association, said in February: “The Productivity Commission’s recommendations, including the introduction of a US-style ‘fair use’ exception and expansion of the safe harbour provision to big tech companies, will make it easier for these large organisations to use Australian content without fair payment and will mean less production of Australian stories.”

Ross McLean, senior counsel at Baker & McKenzie, says that this criticism put the Australian government “under a lot of pressure to drop the reforms”.

“The argument is that safe harbours encourage infringing use of content and that taking down the content after there is a complaint is not good enough—it removes the incentive for users to pay a licence fee in order to use content or to not use music for film footage in the content that they create.”

According to McLean, the government is likely to review the safe harbours, with political support for them still strong.

McLean says: “There is a real prospect that either this government will reintroduce these reforms or that Labor will do so when it next wins government.”

However, while safe harbours remain on the cards, Australian fair use looks less likely in the immediate future.

Australia, unlike the US, does not currently have ‘fair use’, instead supplementing the Copyright Act with “fair dealing”.

In order for a use of a copyrighted work to fall under a fair dealing exception, it must meet certain criteria, which range from a research or study piece, to parody or satire or reporting news.

McLean says that fair use is even more controversial than safe harbours, and as a result could be a year or more away from coming to fruition.

McLean says: “Recently, each of our leading law reform and industry economic reform bodies have recommended the introduction of a fair use exception as important to rectifying the balance in our copyright law, but the rights owner groups are lobbying fiercely to win support amongst the opposition and minority parties to block the change.”

“They have mobilised some support from authors and other celebrity creators. In this environment the government will be reluctant to bring on the issue and to risk a defeat.”

But reforms of this sort still have backing from significant stakeholders, such as Google and Facebook, which would benefit the most from fair use and safe harbour provisions.

In a submission to the Productivity Commission’s study, Google said it supported the fair use and safe harbour provisions, and argued that Australian internet regulation in general, and copyright laws in particular, “must develop in line with international best practice in order to be conducive to innovation, the creation of new online business models and economic growth”.

“Introducing a fair use exception and expanding the safe harbour scheme are central to achieving those goals. Implementing these draft recommendations are critical to Australia’s digital future.”

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