Copyright law must strike a balance between allowing reasonable
access to original works without shortchanging the copyright
owners, an IP expert has said in the wake of internet activist
Aaron Swartz's suicide.
A champion of open access and copyright reform, Swartz had been
fighting a legal battle with the US government over
illegally-downloaded copyrighted material for almost two years.
News of the 26-year-old's death, which some reports have blamed
on over-zealous prosecution by the US Department of Justice, has
cast a spotlight on Australia's 45-year old copyright
Hamish Fraser, a partner at Truman Hoyle Lawyers, told
Lawyers Weekly that changes to the Copyright Act, which is
currently under review by the Australian Law Reform Commission
(ALRC), must ensure there is an incentive to both create and
disseminate original copyright material.
"Any amendments to the Copyright Act must ... balance lower
education costs and greater access to information against creating
incentives for individuals and organisations to create and publish
original works," he said.
Fraser argued that extending the scope of the legislation to
allow learning institutions to distribute significant or whole
parts of original works online to all students for free – for
example, through massive open online courses (MOOCs) – could
throw out this balance.
The ALRC is currently considering submissions for its Copyright
Inquiry and a report will be released in November. The inquiry will
examine how copyright law is affecting Australia's
participation in the digital economy.
A submission by the University of Sydney seeks a more open-ended
model for "fair use" similar to US copyright law. But
Fraser is not convinced the US approach, which provides general
exemptions for certain purposes, such as teaching and scholarship,
is necessarily ideal.
The ambiguity of the term "fair use" under the US act
is problematic, continued Fraser. This can lead to an increase in
legal costs when educational institutions seek advice on making
works available to students, or face litigation if they get it
wrong, he said.
"A clear set of boundaries is important."
Instead, Fraser believes Australian law should be
"fine-tuned" to make the task of sharing original works
easier for educators.
"Currently the Act limits the electronic reproduction and
communication of work so that if one part is available online, no
other faculty may reproduce a different part of the same work while
the first remains available ... there may be scope for fine tuning
the fair-dealing exceptions to ensure educational institutions have
greater certainty," he said.
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