Australian Copyright Law Changes

The Australian Government has this week announced reforms which are to be implemented to make Australian copyright laws "fairer for users" and "tougher on pirates". A draft exposure Bill implementing the changes is to be circulated in the near future.

The proposed reforms follow on from obligations imposed on the Australian Government in accordance with the Australia-US Free Trade Agreement.

Fair user exceptions

There is to be a raft of changes broadly designed to align the Australian position on "fair use" of copyright works with that of the US. The proposed changes will:

• allow consumers to record most television and radio programmes once, in order to view or listen to them at a later time (known as "time-shifting").
• permit consumers to make a copy of legitimately obtained copyright material in a different format (known as "format-shifting"). This will, for example, allow individuals to store their personal music collection currently recorded on CDs, audio tapes or vinyl records in the memory of an MP3 player or home entertainment personal computer. Individuals will also be able to dub their old VHS cassettes onto a DVD.
• strengthen the existing exceptions to copyright infringements and statutory licence schemes which allow copyright material to be used for specific purposes. They will encompass:
• non-commercial uses by libraries, museums and archives
• non-commercial uses by educational institutions
• non-commercial uses for the benefit of people with disabilities
• parody and satirical use.

The new extended dealing exceptions will not apply to uses where there is already an existing exception to infringement or where a statutory licence scheme already operates.

Other amendments are to be made as a result of the Government's review of the 2001 Digital Agenda Copyright Reforms. The reforms will allow libraries and archives to better assist users in an online environment. The statutory licences are also to be updated so as to better reflect the needs of educational institutions and copyright owners in dealing with online material.

The scope of the communication right introduced in 2000 is also to be clarified in order to overcome any doubt that may have arisen that internet browsing is not part of the communication right. The Copyright Act is also to be clarified so as to confirm that statutory licences do not override the operation of other existing exceptions in the Act, including those allowing temporary copies to be made in the course of a communication.

There will also be a new exception to infringement for national cultural institutions to be able to more effectively preserve and provide public access to items in their collections of historical and cultural significance to Australia.

In a development which may concern radio station owners, the Government has also agreed to remove the legislative cap on copyright licence fees paid by radio broadcasters for playing sound recordings.

Copyright enforcement

The Government has expressed its concern at piracy rates in Australia and the damage which this causes to copyright industries although, rather oddly, it has simultaneously announced that it will commission research to be undertaken by the Australian Institute of Criminology on the nature and the extent of piracy and counterfeiting in Australia and how best to respond to the problem. The proposed legislative changes will provide a range of enforcement options for the police to use in addressing piracy of copyright material. For the first time on-the-spot fines will be available to the enforcement authorities and there will be greater powers to access and recover profits made by copyright pirates.

The Government also intends to make it easier for copyright owners to prove the ownership and subsistence of copyright. In respect of films, an evidential presumption will be imposed in civil cases that recognises the worldwide labelling practices of commercially released films.

The Government has particularly targeted so-called large-scale internet piracy including through peer-to-peer file sharing. The Government intends to address such piracy by giving the courts additional power to award larger damages payouts and other remedies. These remedies will apply where there have been multiple acts of infringement but where it may not be practical for the copyright owner to prove each and every separate act of infringement.

Under the new measures, it will become a criminal offence for a pay TV subscriber to distribute a subscription broadcast to other premises or for a subscriber to use a pay TV broadcast for commercial purposes if the appropriate subscription fee has not been paid.

In an effort to encourage greater co-operation between law enforcement agencies, the various Australian States, and industry, an interdepartmental committee on enforcement of copyright will be set up to consider intellectual property enforcement issues. This will extend to possible consideration of the establishment of a discrete law enforcement body specialising in investigating internet piracy.

The Government will also amend the Commerce (Trade Descriptions) Act to make it easier for the Australian Customs Service to seize imported articles containing a false trade description.

Comment

The anti-piracy measures to be introduced by the foreshadowed legislation are to be welcomed and will provide copyright owners with a greater armoury at their disposal.

The proposed amendments introducing a "fair user" exception to copyright infringement, however, seem to be piecemeal and are a little more difficult to follow. The exceptions to infringement at least bring Australian copyright law a little closer to the 21st century but they do not by any means truly align Australian law with the "fair user" concept enshrined in the US copyright law. Why, for example, should an honest Australian consumer only be permitted to time-shift their favourite television programme once? This "concession" seems to be a rather churlish one!