Current law

9.8 Format shifting and time shifting are two types of private-use exception currently provided for in the Copyright Act.

9.9 Format shifting exceptions were introduced in 2007. They allow for the copying, in limited circumstances, of books, newspapers and periodicals,^[1] photographs,^[2] videotapes,^[3] and sound recordings.^[4] These exceptions have common elements. For example, the exceptions apply only if the owner of the original makes the copy, and the original is not an infringing copy.

9.10 Some of these conditions may mean the exceptions do not apply to copies stored on remote servers in the cloud. For example, the exception for format shifting of sound recordings only applies if the copy is to be used with a device owned by the user.^[5] Further, the exception for books, newspapers and periodicals only allows users to make one copy in each format, and storing content in the cloud may require multiple copies.^[6]

9.11 The format shifting exceptions apply only if the owner of the earlier copy makes the later copy. This raises questions about whether others should be able to make these copies for the owner’s private and domestic use.^[7]

9.12 The format shifting exception for films only applies to copies made from films in analog form.^[8] It does not allow digital-to-digital copying. This means the exception does not apply to copies made for example, from DVDs and Blu-Ray discs and digital copies downloaded from the internet. One reason given for this limitation is that ‘unrestricted digital-to-digital copying could allow consumers to reproduce the full picture quality and features provided in commercially produced digital film content’.^[9]

9.13 Section 111 of the Copyright Act, introduced in 2007, provides an exception for the making of ‘a cinematograph film or sound recording of a broadcast solely for private and domestic use by watching or listening to the material broadcast at a time more convenient than the time when the broadcast is made’.^[10]

9.14 This exception is confined to recordings of ‘a broadcast’, defined to mean a communication to the public delivered by a broadcasting service within the meaning of the Broadcasting Services Act 1992 (Cth). By ministerial determination, a service that makes available television and radio programs using the internet is not a broadcasting service under the Broadcasting Services Act.^[11] This raises the question of whether the time shifting exception in the Copyright Act should apply to content made available using the internet or internet protocol television.^[12]

9.15 Another important question is how this exception should operate with new technologies and services, such as the cloud. The answer to this question may depend on the nature of the service. Recordings made by consumers using their own technology, but later stored on a remote server, may be distinguished from recordings made by companies and stored on remote servers for their subscribers to access.