Parliamentary Library Lecture
7 February 2013
Professor Jill McKeough
Australian Law Reform Commission
Copyright in the Digital Economy
• Review foreshadowed by AG McLelland in February
2011
• Announced October 2012
• Commenced May 2012
• Terms of Reference 30 June 2012
• Discussion paper 31 May 2013
• Final Report due 30 November 2013
Copyright and the Digital Economy
– the adequacy and appropriateness of exceptions
and statutory licences and to ensure that
Australia’s economic and cultural development is
supported by these laws
– the importance of the digital economy and the
opportunities for innovation leading to national
economic and cultural development created by
the emergence of new digital technologies
What is copyright for?
• Terms of reference say have regard to the role of
copyright in:
• ‘providing an incentive to create and disseminate
original copyright material(s)’
• ‘The general interest of Australians to access, use
and interact with content in the advancement of
education, research and culture’
• ‘The importance of the digital economy...’
What the Inquiry is not doing:
• ISPs : the architectural framework of the digital
world, underpins the creation of new commercial
entities and practices
• TPMs: technological protection measures
• Other international discussions (EG: use of copyright
material for persons with print disabilities)
We are not reinventing the wheel (or
the internet)
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Have to take into account other reviews (Convergence, Copyright Law Review
Committee, reviews of parts of the copyright act (eg 2006 reforms)
Much activity overseas: International developments concerning copyright law and
reviews continue to emerge as the ALRC Inquiry progresses.
Recent news includes the UK Government final response to the Hargreaves
Report: http://www.ipo.gov.uk/types/hargreaves.htm
The announcement of a review and update of EU copyright law:
http://www.futureofcopyright.com/home/blog-post/2013/01/15/commissionpresents-new-priorities-for-the-eu-digital-agenda-2013-2014.html.
A review of orphan works and copyright is taking place in the US:
http://www.copyright.gov/orphan/ and
WIPO is using YouTube to discuss intellectual property rights
http://www.youtube.com/user/wipo.
Irish Review of copyright law due to report in March 2013:
http://www.djei.ie/science/ipr/crc_consultation_paper.pdf
Copyright is very messy
• Too complex and need expensive advice to know
how it works
• The Act is very unwieldy – larger than tax or
corporations legislation
• ‘Exceptions’ to rights are all over the place
• It has been suggested that much complexity results
from reform decisions being reached in an ad hoc
manner, in relation to specific exceptions, rather
than being underpinned by any widely accepted
principles.
Has the role of copyright changed?
• ‘The erroneous belief that copyright laws are the
engine of culture and creativity (in the popular
sense) is based on a misperception of the role of
copyright in the marketplace’. W Patry How to Fix
Copyright Law (2011), 29
OR
• ‘copyright is a property right and not an instrument
of regulation’. (Comments on UK Hargreaves
copyright reform report).
What does a successful digital
economy look like?
• ALRC is hearing about this in consultations
• A DE does not stand still, characterised by constant
innovation
• Has the right regulatory environment (copyright law
included)
• Allows use of technology without too many barriers
• Fair use, transformative use, user-generated content
• Has good networking, allows business and individual
to ‘flourish’ on-line
The ‘political economy’ of copyright
• Has changed...
• Users now organise themselves and express their
views (ACTA; SOPA;PIPA...)
• It is recognised that transformative use is one form
of innovation
• Want to avoid situations that will slow down/prevent
innovation.
• At the same time, don’t want people to ‘pinch’
people’s creative efforts
Commercial /non-commercial
• Copyright Council Expert Group has recommended
an exception for non-commercial, transformative
use of copyright works
• What is ‘non-commercial’?
• Who knows what will become the next big thing?
• Should a ‘mash-up exception’ be confined to noncommercial use?
• Do we need any such exception at all?
Moral rights
• Last year the Fed Magistrate’s Court held that a
mashup involving a few words mixed into a song was
prejudicial to the artist’s moral right of integrity. It
was not necessary for the artist to show any actual
damage. The artist was awarded $10,000 damages
for infringement of his moral rights.
• Perez v Fernandez [2012] FMCA 2 (10 Feb 2012)
• It is also important to consider issues relating to
Indigenous culture and cultural practices in the
context of digitisation of individual, family and
community material.
55 Questions asked
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Issues paper released 20 August 2012
Submissions due mid November
http://www.alrc.gov.au/publications/copyright-ip42
One question is about whether the correct principles
for reform have been identified
Issues identified include:
• Caching and indexing, cloud computing, private
copying, social media use, transformative use,
orphan works, data and text mining, crown use,
retransmission, statutory licences, educational use,
fair dealing and other free-use exceptions,
contracting out, competition issues, cultural policy,
regulatory policy, technology neutrality...
• A number of submissions are concerned that piracy,
enforcement and internet service provider liability
are not within the TORs
And the big one....
• Fair use exception
• Should further exception(s) recognise ‘fair use’?
• Australia has a closed list of permitted purposes for ‘fair
dealing’ with copyright material
• How would this be understood in the Australian context?
• Section 200AB
– introduced in 2006 to allow any use of a work that is made ‘for the
purpose of maintaining or operating the library or archives’
– Also to assist in ‘giving educational instruction’
– BUT: ‘The provision has not been used to a great extent because it is
too limited, and cultural institutions are unsure about how to use
s 200AB in accordance with their institutional risk management,
relationship management and other policies’.
ALRC processes
• Consultations to identify the issues - followed by the
Issues Paper
• Further consultations to find out the ‘headlines’ in
submissions for further investigation
• Reference groups and roundtables with
industry/academic/stakeholder groups
• Discussion Paper (May/June)
• Further consultations to discuss proposals in DP
Criticism of ALRC process
• Advisory Committee is ‘biased’ (We disagree)
• ‘Not one person with a commercial background or
understanding of the content and creative
industries’ (Some people very surprised to hear that)
• Reference groups of relevant stakeholders being
established
• Anti-commercial bias/conflict of interest/misleading
content (we disagree)
Overview of submissions
• More than 280 submissions received
• Some are very polarised
• Many are very constructive and give us good
information
• Overall agreement with the policy parameters
– Everyone agrees that copyright is an incentive to
innovation and creativity
– authorship is important
– International obligations must be adhered to
Commentary on the submissions
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Twitter
Blogs
Tech journalists
Some financial press
A blog comment: ‘Here is a submission that's been
dusted off from the 1996 pile. It's an exquisite
example of early internet thinking. It toes a hard
conservative line. The only thing good about it is its
consistency. It bangs an old drum and keeps banging
it remorselessly’.
Range of submissions
• Submissions include:
• Academics (individuals and groups)
• Creators and organisations (authors, directors, photographers and
others)
• Education sector
• GLAM (galleries, libraries, archives and museums)
• Government authorities, (ACCC; ACMA; IP Australia; Standards
Australia and others)
• Media/broadcasting/other content organisations and industry
bodies
• Music organisations
• On-line service providers
• Publishers and publisher organisations
• Rights management organisations
What will change?
• Copyright law needs to respond to changes in
technology, consumer demand and markets.
Copyright also needs to have a degree of
predictability so as to ensure sufficient certainty as
to the existence of rights and the permissible use of
copyright materials, leading to minimal transaction
costs for owners of users and avoiding uncertainty
and litigation.