Australia: Summary of the ALRC 'Copyright And The Digital Economy' discussion paper

Last Updated: 20 November 2013
Article by Helen Kavadias

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 infringement;
  • 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 used
    • Effect of use on potential market or value of copyright material
  • 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;
    • (e) non-consumptive;
    • (f) private and domestic;
    • (g) quotation;
    • (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 copyright:

  • Professional advice (not listed as an illustrative use)
  • Back-up and data recovery (not listed as an illustrative use)
  • "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).

Statutory licences

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 holders).

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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