ALRC backs fair use copyright reform, but political hurdles remain

Fair use promotes startup ecosystem and benefits cloud vendors, says ANU law professor

Australia took another step toward “fair use” copyright reform with a paper released this week by the Australian Law Reform Commission, but implementation of the ALRC’s recommendations is not yet a sure thing.

The ALRC discussion paper proposes a “broad, flexible exception for fair use of copyright material and the consequent repeal of many of the current exceptions in the Copyright Act, so that the copyright regime becomes more flexible and adaptable”.

However, the paper released this week is just a discussion paper; the commission won’t reach a decision until November 2013, after the federal election.

What view each political party takes on copyright issues remains a “critical question”, according to Matthew Rimmer, associate professor at the Australian National University’s College of Law. A fair use model has been suggested in the past but scuttled due to lack of political will, he said.

“It’s worthwhile remembering that just because you have a recommendation in a discussion paper from the Australian Law Reform Commission, it doesn’t mean it’s going to be implemented,” Rimmer told Computerworld Australia.

A fair use model would consider alleged copyright infringement on a case-by-case basis, asking whether the practice is fair based on principles called “fairness factors”, without defining in law what is fair.

“Law that incorporates such principles or standards is generally more flexible and adaptive than prescriptive rules,” the ALRC said.

Current Australian copyright law provides “fair dealing” exemptions protecting research or study, criticism or review, parody or satire, reporting news and professional advice given by a legal practitioner, registered patent attorney or registered trademarks attorney. They cover literary, dramatic, musical or artistic works; adaptations of those works; and audio-visual items.

The ALRC said that if fair use is not enacted, an alternative model should add "new fair dealing exceptions, recognising fairness factors".

The development of a digital economy is a major reason to consider fair use for Australia, the ALRC said. “There has been a noticeable degree of change with respect to digital technology, including increasing convergence of media and platforms.”

Fair use would promote innovation in Australia, the ALRC said. The agency pointed to a recent report by Google and PricewaterhouseCoopers that estimated that—with appropriate copyright law—technology startups could contribute $109 billion and 540,000 jobs to the Australian economy by 2033.

Some stakeholders who weighed in on the ALRC review told the agency that Australia currently has “a hostile regulatory environment for technology innovators and investors”, the ALRC said.

“The ALRC considers that the enactment of fair use would foster an entrepreneurial culture which contributes to productivity.”

The ALRC’s fair use recommendations “are critical if Australia is going to be innovative and competitive in the digital economy", said Rimmer, adding that fair use rules in the US are relied upon by startups and established technology entities like Google, Facebook and Twitter.

“If one was setting up a startup company on 3D printing, obviously one would set up in Brooklyn rather than Sydney because of the protection afforded by the broad defence of fair use,” said Rimmer.

“There would be a great concern in a jurisdiction like Australia about such a startup being subject to litigation particularly by big copyright industries.”

Copyright laws have also chased some cloud computing companies out of Australia, said Rimmer. After the High Court’s decision against Optus’s TV Now service, many reconsidered operations here because of concerns about possible copyright infringement action, he said.

“Australia would be at a terrible disadvantage if cloud computing companies considered that they were vulnerable to lawsuits in Australia.”

The Internet Industry Association supports “a more open-ended fair use copyright framework and one that simplifies the current regime and adapts our legislation to the demands of the digital age", IIA chief executive, Peter Lee, said in a statement.

“In our view the alternative model proposed, should fair use not be enacted, a model that suggests the addition of new fair dealing exceptions, would be less flexible and miss an opportunity of taking Australia’s copyright regime into the 21st century.”

Follow Adam Bender on Twitter: @WatchAdam

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