29 August 2017
Reporter: Barney Dixon

Australian government to review fair use

The Australian government will consult on more flexible copyright exceptions, including fair use, as part of its goal to create a modernised framework.

In its response to the Australian Productivity Commission’s inquiry into IP, the government said it wanted to create a framework that “keeps pace with technological advances and is flexible to adapt to future changes”.

“There are arguments that Australia’s current exceptions for fair dealing are restrictive when compared with international counterparts and may not permit some reasonable fair uses of copyright material. However, this is a complex issue and there are different approaches available to address it,” the response said.

The government has also said it supports, in principle, a recommendation to expand safe harbour laws.

It said a consultation into safe harbours would “ensure our safe harbour scheme will encourage growth in Australia’s digital economy and ensure a thriving and vibrant creative sector, whilst respecting the interests of copyright holders”.

Proposals for a fair use and safe harbour system that surpass the country’s current fair dealing laws were initially met with criticism when they were proposed by the commission in December last year.

Rights holders and collecting societies, including the Australian Society of Authors and the Australian Recording Industry Association rejected claims that the country’s copyright laws were too broad and inflexible.

The groups said they supported “sensible reforms to the Copyright Act”, but said that the commission's recommendations, including a US style fair use exception and the expansion of the safe harbour provisions, will make it easier for large organisations to use Australian content without fair payment.

Tech companies including Google and Facebook have argued that fair use would “future proof the Copyright Act”.

The government plans to consult on flexible copyright exceptions in early 2018 after the government has finalised other copyright reform priorities.

The other priorities that the government will be looking at includes a recommendation from the commission that could reshape the fate of collecting societies in Australia.

The commission asked that the government strengthen the governance and transparency arrangements for collecting societies and undertake a review of the current code of practice to assess the efficacy in balancing the interests of copyright collecting societies and licensees.

It should consider whether the current voluntary code represents best practice for collecting societies and whether it should be mandatory.

The government has said it supports a review of the voluntary code and will asks the Department of the Communications and the Arts to undertake a review in consultation with the Australian Competition and Consumer Commission.

The government also supports recommendations that could change the legality of the circumvention of geoblocking technology.

It said it was open to consider whether new exceptions could be created to prescribe “particular uses of copyright material prevented by geoblocking, where they fall within the requirements of the Copyright Act”.

Other measures, however, such as terms and conditions under consumer contracts from jurisdictions outside Australia, would continue to govern the circumvention of geoblocking technology.

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