Described as “controversial” by the Attorney-General Senator George Brandis, the Government has finally made public the Australian Law Reform Commission’s report on digital copyright. And not surprisingly, the report recommends that Australia’s copyright laws should include fair use provisions.
Fair use allows anyone to sample or transform copyrighted works without the need to get explicit permission from the copyright owner, as long as you don’t take revenue from or harm the owner’s work. Believe it or not, it’s actually hard to define what you can and cannot do under “fair use” – and that is a good thing. This means that the law will be able to adapt to new technologies, especially in today’s world where we live in a remix culture.
That said, the ALRC does recommend putting in the legislation a “non-exhaustive list” of what is considered ‘fair use’. These include using copyrighted material for the purposes of research or study, criticism or review, parody or satire, news reporting, and non-commercial private use. However, this may also include caching, data mining, and backups of your software.
However, the ALRC does admit that it might be hard to suggest a fair use clause and has offered a second-best alternative.
“The introduction of fair use to Australia is supported by the internet industry, telecommunications companies, the education sector, cultural institutions and many others. However, it is largely opposed by rights holders. In light of this opposition, the ALRC recommends an alternative, second-best exception,” the ALRC’s report notes.
That alternative is to expand the existing fair dealing clause to include new forms of purposes that would not infringe on copyright. However, it would mean that the laws would be “less flexible and less suited to the digital age than an open-ended fair use exception”, according to the report.
“In the ALRC’s view, Australia is ready for, and needs, a fair use exception now. However, if fair use is not enacted, then the new fair dealing exception will be a considerable improvement on the current set of exceptions in the Copyright Act,” the report adds.
Brandis: Fundamental copyright protection should not change just because of technology
The Attorney-General has hinted that he may not adopt the fair use recommendations outlined by the ALRC review. In his speech when tabling the document to Parliament, Brandis said that copyright law should protect creators and not change just because of technology.
“It is the Government’s strong view that the fundamental principles of intellectual property law that protect the rights of content creators have not changed, merely because of the emergence of new media and platforms,” Brandis told Parliament.
“The principles underlying intellectual property law and the values which acknowledge the rights of creative people are not a function of the platform on which that creativity is expressed.”
“In this changing digital world, we must look for the opportunities, but in reviewing the intellectual property laws, the Government has no intention of lessening rights of content creators to protect and benefit from their intellectual property.”
Brandis, however, added that the Government has not fully considered the report.
EFA: Fair Use is “long overdue”
Digital rights group Electronic Frontiers Australia has welcomed the report, and calls on both the Government and Opposition to introduce fair use provisions in Australian copyright law.
“EFA believes that the introduction of a broad fair use exception into Australian copyright law is a critical and long-overdue element in providing a strong, relevant and flexible copyright regime that will serve Australia well into the future,” Dr. Sean Rintel, EFA chair, said in a media statement.
“A broad fair use exception will enable greater innovation and creativity, will promote a higher degree of respect for copyright among Australian consumers and will remove a number of significant impediments to the development of a vibrant and competitive Australian cloud services industry.”
Consumer lobby group Choice has said that the report’s findings were obvious and showed that current copyright law in Australia was broken. Talking to iTNews, CEO Alan Kirkland said that copyright law “fails to even address basic technologies like DVDs, let alone emerging areas such as cloud computing.”
“If we as a nation are serious about allowing our consumers to benefit from the latest technologies, and allowing our businesses to fully engage with the global and increasingly digital economy, then we need fair use,” Kirkland said.