On 5 June 2013, the Australian Law Reform Commission
(ALRC) released a Discussion Paper for its
'Copyright and the Digital Economy' inquiry containing 42
proposals to reform the Copyright Act 1968 (Cth)
(the Discussion Paper). The ALRC's final paper
is due by 30 November, 2013.
In summary, the ALRC has proposed:
The introduction of a fair use exception to copyright
The removal of statutory licensing;
Amending current provisions relating to retransmission of
broadcasts to extend to retransmission over the internet; and
That agreements that contract out of certain copyright
exemptions will have no effect.
Fair use exception
The proposed fair use exception will expressly state that fair
use of copyright material does not infringe copyright. It will
include non-exhaustive lists of:
Factors for determining "fair use":
Purpose and character of use
Nature of copyright material
Amount and substantiality of the part of the copyright material
Effect of use on potential market or value of copyright
Illustrative uses or purposes that may qualify as fair uses:
"(a) research or study;
(b) criticism or review;
(c) parody or satire;
(d) reporting news;
(f) private and domestic;
(h) education; and
(i) public administration."
The ALRC has also proposed that the fair use exception should be
applied to determine whether the following uses infringe
Professional advice (not listed as an illustrative use)
Back-up and data recovery (not listed as an illustrative
"Transformative use" (i.e. that a certain use of a
work does not infringe the owner's copyright due to the public
interest in the usage (not listed as an illustrative use)
Use of an "orphan work" (i.e. a copyrighted work for
which the copyright owner cannot be identified or contacted) (not
listed as an illustrative use).
It is also proposed that the statutory licensing schemes be
removed and replaced with voluntarily negotiated licences for
governments, educational institutions, and institutions assisting
persons with a print disability.
Broadcasting-retransmission of free-to-air broadcasts
Section 10 of Copyright Act 1968 (Cth) defines a
retransmission as a retransmission of a broadcast, where the
content of the broadcast is unaltered and either simultaneous with
the original transmission or delayed until no later than the
equivalent local time. Retransmission without the permission of the
original broadcaster does not infringe copyright in broadcasts, by
virtue of provisions contained in the Broadcasting Services Act
1992 (Cth). In particular, section 212 of the Act provides
that no "action, suit or proceeding lies against a
person" in respect of the retransmission by the person of
certain television and radio programs. However, the retransmission
must be within the licence area of the broadcaster or, if outside
the licence area, with the permission of the Australian
Communications and Media Authority (ACMA).
The ALRC has proposed two options for amending the current
provisions relating to retransmission of free-to-air broadcasts.
The first option is to repeal the exception to broadcast copyright
provided by the Broadcasting Services Act 1992 (Cth) and
the statutory licensing scheme applying to the retransmission of
free-to-air broadcasts. This would leave the extent and
remuneration of retransmission entirely to negotiation between the
parties (i.e. broadcasters, retransmitters and underlying copyright
The other option is that the exception to broadcast copyright
provided by the Broadcasting Services Act 1992 (Cth), and
applying to the retransmission of free-to-air broadcasts, should be
repealed and replaced with a statutory licence.
Limitation on contracting out
It is also proposed that an agreement that excludes or limits
the following copyright exceptions should have no effect:
Exceptions for libraries and archives
Fair use or fair dealing exceptions that apply to use for
research or study, criticism or review, parody or satire, reporting
news, or quotation.
Should you require any further information on the ALRC
discussion paper, please do not hesitate to contact us.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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