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