Australia launches copyright reform initiative
The Australian Law Reform Commission (ALRC) has released a discussion paper to identify changes to the country’s copyright regime.
The paper, Copyright and the Digital Economy, contains 42 proposals for copyright reform, including a long-awaited broadening of ‘fair use’ and harmonisation of key provisions with international norms.
“The reforms proposed include the introduction of a broad, flexible exception for fair use of copyright material and the consequent repeal of many of the current exceptions in the Copyright Act, so that the copyright regime becomes more flexible and adaptable. An alternative model, should fair use not be enacted, suggests the addition of new fair dealing exceptions, recognising fairness factors,” said the ALRC commissioner for the Copyright Inquiry, Jill McKeough.
“Other reform proposals relate to the replacement of certain statutory licences with voluntary licensing more suited to the digital environment; the use of orphan works; provisions relating to preservation of copyright material by cultural institutions; and contracting out of the operation of copyright exceptions. Two alternative proposals relating to the scheme for the retransmission of free-to-air broadcasts are set out for comment from stakeholders, in addition to other proposals relating to broadcasting,” she added.
The closing date for responses to the discussion paper is July 31, 2013, and the ALRC, a government agency, will report no later than November 30 this year.
Ross McLean, partner at Baker & McKenzie LLP in Sydney, welcomed the paper. “In my opinion the ALRC’s view that developments in the digital economy over the last 10 years or so have highlighted the shortcomings of many of the current exceptions, and emphasised the need for more flexible, open ended and technology neutral exceptions, is correct,” he said.
“The proposal that many of the current specific purpose exceptions be replaced by a broad fair use defence is to be welcomed. It will create a better basis for innovation and a basis which removes Australia’s current competitive disadvantage when compared with the legal regimes of major trading partners such as the US. Submissions from major innovators like Google, Yahoo and the university sector pointed this out,” he added.
McLean pointed out that the flexibility of the proposed fair use regime will avoid needing to persuade the legislature to add further specific exceptions to deal with each new situation. In his experience, specific exceptions can take five to 10 years of lobbying and lawmaking in each case.
Maurices Gonsalves, partner at law firm King & Wood Mallesons in Sydney, said the ALRC has done a remarkable job in a tight timeframe. “I particularly support the central proposal for a broad fair use exception which goes a long way towards addressing these issues and which has worked well in the US,” he said. “I acknowledge that if fair use is adopted there will be a period of adjustment and a degree of uncertainty, but frankly the litigation which we have had over the existing exceptions shows that these do not produce certainty either. Furthermore, there is a vast body of case law in the US to draw on in applying a fair use exception in Australia.”
