(subtitled: Outcomes of the Fair Use Review Announced).

For the past 12 months, Australia has been going through a major review of its copyright law, and in particular, its exceptions to copyright infringement, with a view to ‘updating’ this material for the digital environment. I note that we are not the only ones: Canada are having an ongoing debate (see Michael Geist on all this), and the UK are having their Gower Review (see here).

Today, the Attorney-General has issued a press release, announcing the results of the review. As yet, the press release does not appear to be online, so I’ll summarise. In essence, the government has decided not to adopt the US ‘fair use’ system – where a broadly worded defence must be assessed on a case-by-case basis. Instead, the government will expand, and amend, existing specific exceptions in Australian law. That makes the amendments complicated, but potentially more certain.

The Attorney-General, Philip Ruddock, is characterising the reforms as:

‘…significant copyright reforms which make our laws fairer for consumers and tougher on copyright pirates.’

According to the AG:

‘These are commonsense amendments which will maintain Australia’s copyright laws as the best in the world for the benefit of our creators and other copyright owners and for hte many Australians who enjoy their creative works.’

I wonder, though. The government does appear to have caved on the issue of the ‘flexible exception’ – the ‘catch all’ provision to except uses not foreseen at the time of this legislation. In my submission, I supported such flexibility, and I’m very sorry to see it apparently not there. I wonder whether in a few years time we will be saying what Bill Cornish (not an IP radical or copyleftist, by any stretch of the imagination) said in his Clarendon Lecture:

‘With rapid technical shifts on the scale of the Internet, there must be a case for giving judges some more general power to excuse at the edges, along US lines. After all, at the centre, legislation is rapidly providing the mainstays of control. As one who tried in 1988 to persuade Parliament to introduce a concept of fair use, I feel now even mroe acutely that our failure was a major rebuff. ‘ (Bill Cornish, Intellectual Property: Omnipresent, Distracting, Irrelevant? (OUP 2004) at page 65)

The press release maintains principles which Ruddock has stated a number of times:

  • 1. That copyright must keep pace with technology and rapidly changing consumer behaviour;
  • 2. that ‘reasonable consumer use of technology to enjoy copyright material’ should be recognised – ‘Australian consumers should not be in a significantly worse position than consumers in similar countries’
  • 3. reforms should not ‘unreasonably harm or discourage the development of new digital markets by copyright owners’
  • 4. The unique Australian system should be maintained – we are not moving to US-style fair use;
  • 5. the law should be updated to tackle rising copyright piracy, and to support the copyright industries.

In summary, the AG has announced:

  1. 2 new private use exceptions – time-shifting and format-shifting;
  2. new exceptions allowing schools, universities, libraries, and other cultural institutions to use copyright material for non-commercial purposes;
  3. new exceptions for people with disabilities;
  4. a new exception to allow use of copyright material for parody or satire;
  5. new enforcement measures

Over the fold, I summarise the announcements, and offer some commentary.

Two new private use exceptions

There will be two new exceptions for private use of legitimately purchased or accessed copyright materials:

1. A time-shifting exception to allow consumers to record most television and radio programs to view or listen to once at a later time.

This will expand the current exception in s 111 of the Copyright Act that currently excuses recording of a broadcast forprivate/domestic use, but not of underlying materials (like, the television program, or the songs broadcast on radio). This is a welcome change, although the idea that people will only be allowed legitimately to watch or listen to taped material once seems a little harsh. What if there are multiple people in a household who want to watch at different times? Such a qualification does run a risk of being a technical restriction which is unenforceable in practice and unduly restrictive. I’m not sure what ‘most’ television and radio means. I guess we’ll have to wait to see the draft legislation.

2. A format-shifting exception to permit a person who has purchased a legitimate copy of some categories of copyright amterial to make a copy in a different format. This will cover individuals who store personal music collection in MP3 players (like iPods) or personal computers. It will also allow people to scan articles from newspapers and store them on computers (though not upload it to the internet).

As for DVDs – well, that question will be monitored, with a review in two yeasr time to see whether it can be expanded to digital audio-visual materials consistent with our international obligations.

This exception, too, is welcome, in that it finally would appear to bring Australian law into some conformity with reality. I, for one, will be relieved when I no longer have to explain to people that no, most uses of iPods are in fact copyright-infringing. This goes further, too, than some copyright owners had suggested – organisations like ARIA had opposed this kind of exception. Whether they have received any concessions/limitations to the consumer right embodied here, we will have to see.

A new ‘flexible dealing’ exception

The AG has also announced

A new ‘flexible dealing exception’ that will allow for
1. Non-commercial uses by libraries, museums and archives (eg, to allow a museum to include extracts of historical documents in materials for visitors);
2. Non-commercial uses by educational institutions for the purpose of teaching (eg, to allow a school to put an out-of-date VHS documentary onto DVD);
3. Non-commercial uses for the benefit of people with disabilities (eg, to allow a person with a print disability to convert a book they own into accessible text), and
4. Parody and satire.

It appears that the new exception will include the Berne/TRIPS ‘3 step’ test as a set of conditions which must be met for the exception to apply. That is, the exception is only going to apply:

  • 1. In certain special cases;
  • 2. Where the use does not conflict with a normal exploitation of the work; and
  • 3. Where the use does not unreasonably prejudice the legitimate interests of the author.

This exception is going to be really interesting, for a number of reasons.

First, it’s not clear why it is being called ‘flexible’. To me, it looks like the current Australian system – where specific exceptions are allowed for specific purposes – is simply being expanded by the addition of a few new purposes. This will not allow for ‘unforeseen’ or innovative uses (such as, for example, use of thumbnails by search engines, or, say, the Google Book Search project). But it will address some current problems.

Second, because it will be interesting to see how courts go about applying those conditions. Our courts are going to be directed to apply – not the kind of conditions that apply in the US in fair use (purpose and character of the use; nature of the copyrighted work; amount and substantiality of the portion used; effect of the use upon the potential market), but the international conditions.

Where might they look for assistance in interpreting this? Presumably, the WTO decisions, and also the decisions of the European courts (several European jurisdictions have also incorporated the 3 step test, as a result of the EU Information Society Directive). Those publications and reports by Professor Sam Ricketson (here (warning – huge pdf), and here (warning – another huge pdf)) may also become more relevant. It will be fascinating to see how this all pans out in the end.

Another thing which is interesting about the flexible dealing exception is this idea that ‘parody and satire’ will be allowed. The extension is a very welcome one, in my view. Finally, the Australian sense of humour is recognised in its copyright law! There were plenty of submissions seeking this extension made to the review. I’m glad to see it through.

It is interesting that both parody and satire are listed on the press release as things which will be allowed. The US fair use exception, as interpreted by the US courts, tends to draw a distinction between parody and satire. The cases have allowed use of material for parody (where references to a work are necessary), but not so much satire (where a work is used to make broader comments on the world at large). The EU directive allows countries to have an exception use ‘for the purposes of caricature, parody or pastiche’. Arguably, the attempt to draw a line between parody and satire is relatively meaningless in the end. Arguably, too, it leads to the unedifying spectacle of people trying to argue that their work is parody when it is clearly more like political commentary). But the inclusion of both is, I think, interesting.

Note, too, that the coverage of certain ‘non-commercial uses by libraries, museums, archives, and educational institutions’ suggests that the time-shifting and format-shifting exceptions are only going to apply to individuals for private/domestic uses.

Responses to the Digital Agenda Review: more extensive provisions to allow digital uses by libraries, cultural institutions, and educational institutions

The other thing that is going to be done in these laws is the response to the Digital Agenda Review. According to the press release:

1. Reforms will be made to allow libraries and archives to better assist users online;
2. Statutory licenses will be updated to ‘better reflect the needs of educational institutions and copyright owners when dealing with online material’ – for example, the status of caching and distributed technologies in classroom teaching will be clarified;
3. The scope of the communication right will also be clarified to overcome any doubt that Internet browsing is not part of the communication right.
4. The Act will be clarified to confirm that statutory licenses do not override the operation of other existing exceptions in the Act, including those allowing temporary copies to be made in the course of a communication.
5. There will be a new exception for national cultural institutions to be able to more effectively preserve and provide public access to items in their collections of historical and cultural significance to Australia for future generations without breaching copyright

Wow. There’s some potentially very significant stuff here.

First, have a look at point 3 and 4. It looks to me like the government is planning to take the wind out of the sails of one of CAL’s arguments in its current dispute in the Copyright Tribunal regarding ‘tell students to view’ material: CAL have been arguing that schools should potentially pay every time a student is told to go look at a website. You might recall I’ve ranted about the silliness of the argument being made before (here, here, and here). Now, there’s still lots of other arguments raised in the case – but it looks to me like the government has decided to step in and eliminate the really silly one.

I’m not sure what the ‘online updating’ will cover – I will have to go look at the full government response to the digital agenda review (it’s meant to be online but I’ve not found it yet).

And look at that last one – point 5. There have been ongoing issues about the ability of cultural institutions to preserve important material in light of copyright. In fact, these issues are in part behind the complaints about ‘orphan works‘ and the silliness of copyright standing in the way of preservation and other activities. It will be very interesting to see how far that provision extends – and to see whether it takes some of the wind from the sails of those advocating a full review of the issue of orphan works.

Provisions on copyright enforcement

The AG has also announced new developments regarding enforcement: namely:

1. Police will be given teh power to issue on-the-spot fines for copyright piracy;
2. New presumptions will be created to make it easier for copyright owners and prosecutors to prove ownership and subsistence of copyright;
3. The government ‘will address large-scale Internet piracy … by giving a court additional power to award larger damages payouts or other remedies’ – to apply ‘where there have been multiple acts of infringement, but where it may not be practical for the copyright owner to prove every single act of infringement’;
4. The government is going to change the definition of ‘article’ to cover electronic copies (addressing an issue that arose in both Kazaa and in the Cooper case)
5. Pay TV piracy will be criminalised (this has already been announced).
6. There will be research into piracy by the Australian Institute of Criminology (to research the nature and extent of piracy and counterfeiting in Australia);
7. More seizure powers will be given to Customs;
8. There will be continued support for cooperation between law enforcement and agencies, and public awareness campaigns.

Some of these moves are pretty significant too. The idea of larger damages payouts for Internet infringements, on-the-spot fines, and that extension of the definition of ‘article’ (which will make more provisions of the Act applicable to things that happen online) – these are things the copyright owners have wanted for a while and will, I think, be pretty significant in the long term.

Concluding comments

This is going to be one helluva piece of amending legislation. It will represent the culmination of a series of Reviews (the Digital Agenda Review, and the Fair Use Review in particular). The changes being proposed would appear to go well beyond the cosmetic, although final judgment will have to be withheld until draft legislation is released.

If the changes go as far as the press release indicates, the government will have dealt with some long-standing issues in Copyright law. Exceptions for parody, for time and format shifting; updating of the digital provisions, and perhaps some more freedom to act for our cultural institutions: these are all going to be beneficial from a users’ perspective and will bring the law further into line with – as the AG puts it – ‘commonsense’.

There is some devil in the details, even on the face of it. Time-shifting to watch once only, and the inclusion of the 3 step test (which, in the long term, could be quite restrictive depending on what our courts do, and whether they follow restrictive European interpretations), and large damages provisions for internet conduct – all of these will be things to watch.

Another interesting thing to note is that there is no mention, in the press release, of the issue of TPMs and amendments to anti-circumvention law in light of the FTA. I had wondered, given the delay in announcing these laws, whether perhaps they would try to deal with the issues all at once. They haven’t, which means it will be interesting to see how those laws interact. There is potential for much of this to become less meaningful depending on how those laws end up being drafted. But it’s only potential – and regardless, I think these amendments, on the face of them, look pretty good.


Further sources

The history of the review can be traced via the links on the side bar on Weatherall’s Law. Note in particular,

For other commentary so far, see: