Australia: Australia's Copyright and the Digital Economy Issues Paper - how does it affect me?

Intellectual Property and Technology Alert
Last Updated: 29 August 2012
Article by Anthony Willis

As part of its Inquiry into Copyright and the Digital Economy (the Inquiry), the Australian Law Reform Commission has released an Issues Paper (20 August 2012) that sets out a framework for submissions to the Inquiry.

The Issues Paper invites comments on a wide range of issues that affect individuals and businesses, including:

  • Cloud computing
  • Caching, indexing and the like
  • Copying for private use (including format shifting and time shifting)
  • Use for social, private or domestic purposes (eg social networking)
  • Transformative and collaborative use (eg sampling, remixes and mashups)
  • The libraries and archives exceptions (and the role of digitisation)
  • Data and text mining
  • Crown use of copyright material
  • Retransmission of free-to-air broadcasts
  • Statutory licences
  • Fair use, fair dealing and other free-use exceptions
  • Contracting out of copyright exceptions.

Interested persons can make submissions in response to any of the 55 questions raised by the Inquiry, or to any of the material discussed in the Issues Paper.

How does this affect me?

The Inquiry provides an opportunity to propose changes to the Copyright Act 1968 (Cth) (the Act) to help create a viable copyright framework for the digital age.

Submissions received will inform the Inquiry's report, and thus may influence the development of Australia's copyright regime, in response to the key question:

'...whether the exceptions and statutory licences in the Copyright Act 1968 (Cth) are adequate and appropriate in the digital environment or new exceptions are desirable.'

Question 1 shows the breadth of the Inquiry by inviting comments on how copyright law:

  • Affects the ability of creators to earn a living, including through access to new revenue streams and new digital goods and services
  • Affects the introduction of new or innovative business models
  • Imposes unnecessary costs or inefficiencies on creators or those wanting to access or make use of copyright material
  • Places Australia at a competitive disadvantage internationally.

We have highlighted the following areas, which we think may be of interest. However, submissions can be made in relation to a wide range of topics.

Business involved in cloud computing should take the opportunity to:

  • Respond to questions 5 and 6 which ask whether the current copyright law is 'impeding the development or delivery of cloud computing services', and what new exceptions could be created, or other changes be made to the Act to assist these technological developments
  • Submit any concerns they may have about, for example, to being held liable for reproducing or communicating copyright material uploaded
  • Offer their assessment of how uncertainty in the current law may affect (or has already affected) their business.

Copyright owners should be aware that one focus of the Inquiry is on how use of copyright material online for 'social private or domestic purposes' could be regulated. In particular, the Inquiry is interested in finding out whether the Act should be amended to permit such use and, if so, what this exception should look like. For instance, the Inquiry suggests that such an exception could be based on whether the use is 'non-commercial' or 'does not conflict with normal exploitation... and does not unreasonably prejudice the legitimate interests of the owner of the copyright'.

Copyright owners may wish to propose terms or limitations for this 'private and domestic use' exception, noting that the popularity of social networking for both private and business purposes has blurred the lines between commercial and non-commercial use.

Government agencies that rely on the provisions in the Act that allow the use of copyright material for the purposes of Crown may wish to comment on how the current statutory licensing scheme can be adapted in the digital environment. The Inquiry also asks whether there should be new exceptions 'to allow certain public uses of copyright material', apart from the exception in section 183 of the Act, which grants the Crown a statutory licence to use copyright material in particular circumstances.

Consideration will also be given to whether the Crown should be on the same footing as other citizens, open access licensing of public sector information, express or implied licences to use material submitted or provided to government agencies and the interplay between copyright and freedom of information laws.

Contracts that purport to exclude or limit the operation of copyright exceptions are also under scrutiny. Here, the Inquiry is especially interested in learning about the commercial practices of online mass market contracts, and specifically, whether onerous terms are being imposed by the drafting party. Comments are sought on whether the Act should be amended to prevent contracting out of copyright exceptions, and if so, which exceptions.

Those making submissions will need to keep in mind that any recommendations for the Inquiry to consider should be consistent with Australia's international obligations. For example, the Agreement on Trade-Related Aspects of Intellectual Property Rights, the Anti-Counterfeiting Trade Agreement and Australia's Free Trade Agreement with the United States impose obligations on Australia to enforce certain standards within the copyright regime. That said, the Inquiry is willing to consider 'what flexibility can be found within international constraints' and to use its findings to advise on future treaty negotiations.

Recommendations to the Inquiry should be in line with the eight guiding principles for reform set out in the Issues Paper, although the current principles may change, as comments on these principles as well as suggestions for additional principles are being sought. The principles currently include:

  • Promoting the development of the digital economy
  • Encouraging innovation and competition
  • Recognising rights holders and international obligations
  • Promoting wide access to and wide dissemination of content
  • Responding to technological change
  • Acknowledging new 'real world' ways of using copyright material
  • Reducing the complexity of copyright law
  • Promoting an adaptive, efficient and flexible framework.

Timeline of the Inquiry

Initial submissions to the Inquiry are due by 16 November 2012.

The Inquiry will then produce a Discussion Paper proposing reforms to the current copyright law, and invite further submissions (anticipated mid-2013).

The Inquiry aims to deliver a final report by 30 November 2013.

We will continue to monitor the discussions surrounding the Inquiry and keep you updated on how any proposed reforms may affect you and your operations.

© DLA Piper

This publication is intended as a general overview and discussion of the subjects dealt with. It is not intended to be, and should not used as, a substitute for taking legal advice in any specific situation. DLA Piper Australia will accept no responsibility for any actions taken or not taken on the basis of this publication.

DLA Piper Australia is part of DLA Piper, a global law firm, operating through various separate and distinct legal entities. For further information, please refer to

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