22 Aug 2012

How well does copyright operate in the digital world, asks ALRC issues paper

The ALRC's Issues Paper for its inquiry into Copyright and the Digital Economy has been released, and, as expected, it covers some – but not all – important questions about Australian copyright law.

Comment is due by 16 November 2012. In this Alert we'll highlight some of the more interesting questions it poses.

Retransmission of free-to-air television

Currently, retransmission without the permission of the original broadcaster does not infringe copyright in broadcasts. The underlying policy is to ensure places without adequate free-to-air coverage can see these transmissions. Should this be reformed? As the Issues Paper says:

"These issues — whether the retransmission of free-to-air broadcasts should continue to operate as an exception to copyright in broadcasts; and whether the statutory licensing scheme should apply in relation to copyright materials retransmitted over the internet — raise significant communications and competition policy questions."

Cloud computing, caching, and dealing with the fallout from the Optus TV Now case

As the Issues Paper notes, the Optus TV Now case "highlights the potential for new and emerging cloud computing services to infringe copyright, or enable their customers to infringe copyright."

What effect does the Copyright Act have on these new services, and, if it is having a deleterious effect, is that a bad thing?

Fair dealing, fair use, and a broad general exception

There are currently limited "fair dealing" defences to copyright infringement in the Copyright Act. The Issues Paper asks if these:

  • work appropriately in the digital world;
  • should be simplified; or
  • be replaced with a more open-ended "fair use" model, which is used in other countries.

Mash-ups, sampling, and other transformative uses

Sampling, mash-ups, and other transformative uses have been a hot issue in the music industry for the last 20 years. The Issues Paper asks if the Copyright Act should be amended to make them an exception to copyright infringement.

The individual's non-commercial uses of copyright material: Time-shifting, format-shifting, and social media

User-generated content is a major attraction in various forms of social media, but its legal status can be unclear. A user might, for example, take a copyright work – for example, a song – and add it to a home video which is then shared online. This is copyright infringement – but should it be?

This opens up a range of questions, including what would count as "private and personal use" when it's online, and the role and liability of the platform provider.

The Issues Paper also canvasses changes to the legal status of format- and time-shifting. Should the exceptions be broader and simpler? And, given the Optus TV Now decision, should it matter who does the recording when it is for a consumer's private and personal use?

Data and text mining

According to the Issues Paper, "Researchers and research institutions have highlighted the value of data mining in paving the way for novel discoveries, increased research output and early identification of problems".

Whether they can do it legally is another question. The Issues Paper seeks comment on whether data and text mining is being impeded by the Copyright Act, whether that's a problem, and whether a specific exemption is required.

Next steps in the copyright inquiry

A Discussion Paper with proposals for reform will be released once the ALRC has considered submissions on the Issues Paper, with a final report to be delivered by 30 November 2013.

Under its terms of reference, the ALRC must take into account recommendations from related reviews, in particular the Government’s Convergence Review, but can't duplicate work on:

  • unauthorised distribution of copyright materials using peer to peer networks;
  • the scope of the safe harbour scheme for ISPs;
  • increased access to copyright works for persons with a print disability; or
  • the review of exceptions in relation to technological protection measures.

As a result, it might take some time for the Government to consider all aspects of any proposed changes to copyright law and come to a settled policy conclusion.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.