Scope of the Inquiry

1.4 The Terms of Reference for this Inquiry focus on exceptions to copyright law. Exceptions allow certain uses of copyright material that would otherwise be infringements of copyright. Stakeholder input has been highly relevant in identifying the focus of investigation for this Inquiry, and not all exceptions have received consideration. The recommendations in this Report are intended to make the Copyright Act more accessible and better suited to the digital environment, but do not attempt overall redrafting or simplification of the legislation.

1.5 In performing its functions in relation to this Inquiry, the ALRC was asked not to duplicate work being undertaken in four areas of importance to the digital economy, namely:

• unauthorised distribution of copyright material using peer-to-peer networks;

• the scope of a safe harbour scheme for internet service providers;

• exceptions in relation to technological protection measures; and

• increased access to copyright works for persons with a print disability.

1.6 The items listed are under discussion at government level or are the subject of separate processes. The first refers to concerns about controlling the unauthorised distribution of copyright material using the internet as a file sharing network. This type of sharing was originally typified by the Napster music file sharing service and is now perhaps most commonly associated with the use of the BitTorrent peer-to-peer file sharing protocol. However, the Terms of Reference place the focus of the ALRC Inquiry on legal exceptions to copyright rather than on measures to combat copyright infringement.

1.7 The second and third matters listed above concern work the ALRC is ‘not to duplicate’. This refers to work being undertaken by the Australian Government Attorney-General’s Department on the safe harbour scheme for internet service providers (ISPs)^[1] and technological protection measures (TPMs)^[2] respectively. The Attorney-General’s Department Consultation Paper, Revising the Scope of the Copyright Safe Harbour Scheme, was released in 2011.

1.8 The fourth matter above refers to initiatives to facilitate access to published works by persons with a print disability, including through the World Intellectual Property Organization (WIPO). WIPO discussed an instrument providing access to copyright works for persons with a print disability at its 24th Session in Geneva, July 2012 and subsequently concluded a Treaty in 2013.^[3]

Related inquiries

1.9 Policy makers around the world are actively reconsidering the relationship between copyright exceptions and innovation, research, and economic growth, with a view to ensuring that their economies are capable of fully utilising digital technology to remain competitive in a global market.^[4]

1.10 Relevant Australian reviews include previous work by the Copyright Law Review Committee, particularly Simplification of the Copyright Act^[5] and Copyright and Contract in 2002.^[6] Other relevant reviews include the Review of Intellectual Property Legislation under the Competition Principles Agreement (Ergas Report),^[7] the Powering Ideas: An Innovation Agenda for the 21st Century^[8] and the 2011 Book Industry Strategy Group Report.^[9]

1.11 In its 2005 review of fair use, the Australian Government Attorney-General’s Department considered whether it was appropriate to introduce a general fair use exception into the Copyright Act.^[10] This review resulted in exceptions being introduced into the Act in 2006, for time shifting, format shifting, parody and satire and flexible fair dealing.^[11]

1.12 The Convergence Review examined Australia’s communications and media legislation and advised the Government on potential amendments to ensure this regulatory framework is effective and appropriate in the emerging communications environment.^[12]

1.13 The Convergence Review noted that copyright-related issues in general may have implications for investment in the content services market. Advances in technology and evolving business models are providing new ways of accessing and distributing content in the converged environment, which are likely to have implications for content rights holders, and for users. These changes have been highlighted in recent developments, such as the ruling of the Federal Court on the Optus cloud-based TV Now service.^[13]

1.14 The Convergence Review proposed that the issue of copyright and the retransmission of free-to-air broadcasts be examined as part of this Inquiry and that, in investigating content-related competition issues, a new communications regulator should have regard to copyright implications and be able to refer any resulting copyright issues to the relevant minister for further consideration by the Government.^[14]

1.15 In July 2013, in its report on radio simulcasts the Senate Environment and Communications References Committee, commented on the many related broadcasting and copyright issues identified in numerous reviews—of which this Inquiry is one.^[15]

1.16 Also in July 2013, the House of Representatives Standing Committee on Infrastructure and Communications released its report on price differentials for Australian business and consumers for products including computer software, hardware, music, films, ebooks and games.^[16] The report made a number of recommendations relating to creating a more open and competitive market environment for the supply of IT products to business, the community and government.

1.17 Copyright reform has been pursued in overseas jurisdictions, notably in the UK through the Hargreaves Review, which was intended to reshape copyright to be ‘fit for purpose’ in the digital environment.^[17] In its response to the Hargreaves Review the UK Government agreed that ‘the IP framework is falling behind and must adapt’.^[18]

1.18 The Hargreaves Review has been favourably received by the UK Government, which has responded with a number of legislative initiatives. Stakeholders in this Inquiry generally have approved of the Hargreaves Review. However, a House of Commons committee has also criticised it as ‘likely to cause irreparable damage’^[19] to the UK economy, and considered ‘the existing law works well’.^[20] Professor Hargreaves has refuted this criticism of his report.^[21] The disjunction between those who state that there is no need for reform, and others who see a critical need to update copyright law, is also a characteristic of this ALRC Inquiry.

1.19 In January 2013, the European Commission announced seven new priorities for the European Digital Economy and Society. One of these steps is to ensure the EU copyright framework ‘remains fit for purpose in the digital context’.^[22] Among the proposals are new EU Directives concerning the activities of collecting societies in order to facilitate introduction of new business models that enhance online distribution of music.

1.20 The Copyright Review Committee (Ireland) reported in October 2013,^[23] after considering submissions received in response to an earlier discussion paper.^[24] The Review made a number of recommendations, including the establishment of a copyright council and specialist courts for copyright matters, as well as exceptions for innovation and fair use.

1.21 In April 2013, the US House of Representatives announced ‘a comprehensive review of US copyright law’.^[25]

1.22 In 2012, Canada enacted the Copyright Modernization Act 2012 (Can).^[26] It included an amendment to address the issue of user-generated content and specifically recognises fair dealing for educational purposes, as well as a number of other matters under consideration in the ALRC Inquiry.

Matters outside the Terms of Reference

1.23 This Inquiry is defined by its Terms of Reference. A number of stakeholders raised issues of wider concern which the ALRC did not, or could not, address. Despite exclusion from the Terms of Reference, and work being done elsewhere, a number of stakeholders have been critical of the ALRC for not considering infringement and enforcement matters.^[27]

1.24 A number of submissions pointed out that enforcement, ISP safe harbour schemes and TPMs are matters of importance to many stakeholders, and highlighted the difficulty of making recommendations on matters within the Terms of Reference without taking account of the issues the ALRC is directed not to inquire into.^[28]

1.25 The Australasian Performing Right Association and Australasian Mechanical Copyright Owners Society (APRA/AMCOS), for example, noted that to ‘maximise the potential contribution of content industries in the digital economy there are a number of significant challenges which will need to be overcome’. These include ‘the ease with which digital content can be distributed and copied’ and ‘meaningful regulation of the ISP industry’.^[29] Other stakeholders also raised the need to consider ISP and intermediary liability.^[30]

1.26 The Arts Law Centre of Australia raised a matter relating to protection of Indigenous cultural heritage in the form of sui generis legislation and asked the ALRC to consider the engagement of the Copyright Act with Indigenous artists, arts organisations and Indigenous communities where copyright law does not recognise aspects of Indigenous customary law.^[31]

1.27 The Australian Directors Guild requested amendment to s 98 of the Copyright Act to delete the words ‘commissioned film’ in that section to enhance the rights of film directors and access to revenue streams ‘as an equal creator of audiovisual works’.^[32] The Screen Producers Association of Australia opposed this suggestion.^[33] The ALRC acknowledges the concerns of film directors but considers that this issue does not fall within the Terms of Reference for this Inquiry.

1.28 The question of copyright protection for newspaper headlines and internet links was raised by some including the Combined Newspapers and Magazines Copyright Committee.^[34] Newspaper publishers submitted that press aggregators’ practice of ‘free riding’, by so called ‘abstracting’ of newspaper or magazine articles should be prohibited under the Copyright Act until the eighth day after the original publication first appears. An attempt to redress this sort of activity and redress the loss of revenues suffered by newspaper companies as a result of free online news aggregators has apparently been discussed in Germany, but has not proceeded.^[35]

1.29 Refusal to supply electronic resources to libraries in a timely manner, at a fair and affordable price and under licences that acknowledge copyright law exceptions for libraries is a matter of concern.^[36] Library access to ebooks and elending has become an issue and the subject of ‘national think tanks’ as to securing equitable access to information in digital formats. These concerns, relating to refusal to supply and contractual matters, are outside the Terms of Reference.

1.30 eBay raised an issue of exhaustion rights and parallel importation and supported amendment of the Copyright Act to effect removal of all barriers to the importation and sale in Australia of products manufactured under the authority of the legitimate copyright owner.^[37] This would have the effect of facilitating the sale of second-hand digital media. Some aspects of this issue are currently under discussion by consumer advocates.^[38]