Future proof your copyright

The future of Australian copyright is mired in a sea of arguments and disagreements. Recommendations from the productivity commission received a mixed response, but the government intends to plough ahead, as Barney Dixon reports

The Australian government is to review more flexible copyright exceptions on the mainland, including fair use and safe harbours for digital platforms. But, while this progression of law may seem natural to onlookers, the reforms—suggested in December last year—have received a mixed reaction.

In 2015, Australia’s productivity commission was tasked with assessing whether the country’s IP system sufficiently incentivises innovation. In short: the productivity commission answered no. As a solution, the commission recommended a batch of reforms, including a fair-use exception, to remedy the problem.

Rights holders and collecting societies have lambasted the proposed reforms, rejecting claims that the country’s copyright laws are too broad and inflexible, and arguing that a US-style fair use exception and the expansion of safe harbour provisions would make it easier for large organisations to use Australian content without fair payment.

In a joint statement, rights holder groups, including the Australian Society of Authors and the Australian Recording Industry Association, blasted the productivity commission’s proposals, arguing that, while they support sensible reform that benefits “both Australian audiences and Australian creators”, the commission’s proposals are weighted too heavily in favour of big tech companies.

On the other hand, those same tech companies, including Google and Facebook, have argued that fair use would “future proof the Copyright Act”. Online encyclopedia, Wikipedia, has also joined the fight for fair use, accusing Australia’s current fair dealing law of being restrictive, especially for those in education who must pay a royalty fee to use freely accessible websites like Google Maps in their classrooms, despite this not being the case anywhere else in the world.

The government now plans to consult on copyright reforms in early 2018, after it has finalised other copyright priorities, including a recommendation from the commission that could reshape the fate of collecting societies in Australia. In the meantime, however, the government can still be influenced on its final decisions.

The government has said that it will hold consultations, specifically on safe harbours, to ensure the “scheme will encourage growth in Australia’s digital economy and ensure a thriving and vibrant creative sector, whilst respecting the interests of copyright holders”.

This is a tall order though, and balancing the interests of several opposing parties may be a struggle for the government.

Special counsel at DLA Piper, Rohan Singh, says that lobby groups have “had an input during the productivity commission’s consultation process, but might still be able to persuade the Australian government not to adopt certain changes”.

“The overall thrust of the productivity commission’s report was that Australia’s copyright is skewed too far in favour of copyright owners, to the detriment of consumers and intermediate users,” he says.

“This seems likely to prompt lobbying from rights owners who may see the recommendations as eroding their rights”.

Singh says that little will happen before a further public consultation, but notes that the Australian government considers it a “complex issue” with various different approaches.

The idea of “future proofing” the copyright system is something that has been discussed a lot in Australia and the world. As technology comes fast and hard, with an ever-increasing amount of changes to content use and availability, Singh says a general “‘principles-based’ fair use exception could be more flexible and may adapt to the changing landscape of content use, rather than waiting for legislative changes to catch up with community practice”.

“Critics of general fair use exceptions claim they create uncertainty and reduce the incentives to create. While likely to be more beneficial for users than copyright owners, the productivity commission’s report asserts that the US system provides more certainty than in Australia, and that US creative industries thrive.”

Singh adds that, despite any clear decision from the Australian government in the short term and the uncertainty of where Australian copyright law will end up, it seems likely it could move closer to the US model.

He continues: “A general fair use system could strike a more even balance between the interests of owners and consumers in a landscape that calls for transformative, innovative and collaborative use of copyrighted materials.”

Overall, Singh recognises that true “future-proofing” is unlikely. But concedes that a general fair use exception would likely help.

The productivity commission used the example of Australia not legalising the widespread practice of home VCR recording until 2006, by which point VCRs had fallen out of mainstream use.

Singh says that change seems inevitable, if not imminent, and the productivity commission’s report has exposed the failings of the Australian copyright system.

He says: “Given the Productivity Commission’s conclusion that copyright protection in Australia has its shortcomings—such as being overly broad, applying equally to commercial and non-commercial works; protecting works with very low levels of creative input; protecting works that are no longer being supplied to the market; and works where ownership can no longer be identified—it seems likely that some form of change will be made eventually.”

Australia’s government has said it wants to create a framework that will keep pace with technological advances and is flexible, and it has supported a number of the commission’s recommendations.

The government said: “It is important copyright reform is considered in a holistic context rather than focused on individual issues.”

“We will continue to work closely with stakeholders over the next 12 months to develop effective options for copyright reform.”

Australia has its work cut out for it and with the government supporting a separate proposal to abolish its innovation patent, Australia’s bid to bring the country’s intellectual property laws in line with international standards may be a tough pill to swallow.

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