Copyright Amendment (Exceptions, Enforcement and Other Measures) Bill
Australian copyright law is set to advance in the face of ever-changing technology and use of copyright material. Australian copyright law is often criticised as being far behind the pace of technological developments in the use and abuse of copyright material. Recent Government reviews have resulted in the proposed introduction of the Copyright Amendment (Exceptions, Enforcement and Other Measures) Bill in the Autumn sitting of 2006. The proposed new legislation will be designed to bring Australian copyright laws up to speed and implement outcomes for the 2005 reviews.
Copyright law in Australia is largely governed by the Copyright Act 1968 ("the Act"), which provides for copyright protection for "works", being literary, dramatic, musical or artistic works. Copyright, or the right to use a work, is vested in the author of the work. The Act creates certain exceptions or statutory licences for the use of protected works, namely for the purposes of research and study, criticism and review, the reporting of news and for use in judicial proceedings or the provision of legal advice. Outside of these limited exceptions, any use of a work other than by the author or owner of the copyright is prohibited.
Contrary to popular belief, Australian copyright law does not provide for any form of personal use exception to copyright.
The copying, lending, hire or reproduction of personally owned copyright materials is strictly prohibited in Australia.
This is set to change with the new copyright laws, which will provide for a limited fair dealing exception for personal use. Under the proposed new laws, individuals will be able to "phase shift" and "format shift" some forms of personally owned copyright materials. The rationale behind the amendments is the need for copyright laws to keep pace with technological and consumer developments. Importantly, it is the stated objective of the Government that:
"Everyday consumers shouldn’t be treated like copyright pirates. Copyright pirates should be not treated like everyday consumers".
Phase shifting or time shifting will allow consumers to record television and radio broadcasts for viewing or listening to at a later time. The recorded broadcast may be privately viewed or listened to with family or fiends but cannot be loaned, given away or uploaded to the internet.
Astoundingly, the proposal presently adopted is that the copied broadcast may only be used once, after which time it must be erased.
Format shifting will allow consumers to copy music, books, newspapers, magazines, video tapes and photographs from one format to another. Format shifting may be done to take advantage of new technologies (ie copying a VHS to DVD) or to enjoy a work in a different location (ie copying cd’s to an MP3 player or laptop).
The crux of format shifting is that the original work must be transformed from one format to another.
This fair dealing exception does not permit the making of multiple or back-up copies of a work in the same format as the original. In addition, this exception will not initially apply to DVD’s or computer games, which will be the subject of a further anticipated review after 2 years.
In addition to the above, the review will provide for a more liberal use of copyright materials by educational institutions and libraries and will provide for increased penalties for copyright infringement.
The proposed amendments are motivated by the desire for copyright law to keep pace with technological and consumer behaviour developments. However, the proposed amendments clearly do not break new ground, but are merely recognition and validation of behaviour which has been taking place ever since the advent of the VCR and which has exploded with the use of home computers, electronics and the internet. The proposed amendments are more of a last ditch effort to close the gap with the steroid induced sprint of technology and commerce. However, especially given that the proposed amendments are going to sidestep technologies such as DVD’s, Australian copyright law can be expected to come a close second at best.
Significantly, the copyright law amendments are set to liberalise copyright protection only for individuals and educational institutions. Commercial entities will not benefit from the proposed amendments and the copying and distribution of, for example, trade articles and media is still strictly prohibited. Likewise, corporations will not have the liberty to format shift owned works, such as texts and instruction manuals for ease of use and distribution amongst employees.
The balance between protection and use of copyright materials is a fine one to achieve and is all the more complicated by the ever changing modes for creating and using copyright works. It is probably unrealistic to expect copyright law to keep pace with developments, but the subject matter of the proposed new Bill may mean that, if implemented, Australian copyright law is not too far behind.
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.