Copyright Act needs reform: must balance benefits for creators against a range of public interests

It has been a big week for Australian Copyright.  On Thursday the Attorney-General, the Hon George Brandis QC, tabled the long-anticipated final report from the Australian Law Reform Commission’s (ALRC) Copyright and the Digital Economy inquiry.  This inquiry was charged with determining if copyright exceptions and limitations were working in the digital age.  The conclusion was that reform was needed.  The ALRC recommended:

• Replacing most specific copyright exceptions with a broad, flexible ‘fair use’ exception
• Retaining and simplifying some specific exceptions, such as preservation copying and document supply for libraries and archives, and exceptions for some government and judicial uses. 
• Reforming the statutory licences for government and education
• Limiting remedies for use of orphan works where a reasonable diligent search has been carried out prior to use
• Preserving the library exceptions (and the fall-back recommendation of extended fair dealing) from contracting out. 
• Recommendations about broadcasting for the government to consider when setting media and communications policy

On Friday the Attorney-General delivered a crucial speech at the Australian Digital Alliance Forum, which sets out the Government’s priorities and approaches to copyright.  Reflecting on the history and development of copyright, the Attorney-General referred to Thomas Macaulay:

His central insight is to remind us that copyright is a monopoly – a necessary monopoly – but a monopoly nonetheless.

Moving to the present, the Attorney-General noted the world had changed much from the 1800s, we now expect much more than a good supply of books, and our cultural industries are a central part of our economic and societal wellbeing.  In this modern world, the Attorney-General firmly recommitted to preserving fundamental principles of copyright law.

It is true that we now consume, create and distribute content in ways that would have been beyond imagining when Macaulay introduced the first copyright law.  It does not follow, I think, that the principles that underpin copyright are incapable of adapting.   

They have adapted to cinema, radio, television and personal computers, why not to technologies of which we are still to dream.  

However, the Copyright Act has not adapted well to new technologies.  Noting the many issues facing cultural institutions, consumers, education and industries the Attorney-General described the Act as:

overly long, unnecessarily complex, often comically outdated and all too often, in its administration, pointlessly bureaucratic. 

The Attorney-General committed to a major overhaul of the Act being ‘convinced that we can do much to improve how copyright works in this country.’  This is a point few would disagree with, many of the over 800 submissions to the ALRC inquiry detailed the many instances where copyright law either inhibited public interest and innovative uses, or increased organisations’ regulatory uncertainty.  From libraries unable to make cultural heritage available to the lack of support for cloud computing, the issues with the current Act and its narrow exceptions are well documented.  For the process of reform, the Attorney-General committed to the following:

First, when this process is finished, and it will be a through and exhaustive exercise in law reform, the Copyright Act, will be shorter, simpler and easier to use and understand. 

Secondly, the Act will be technology neutral - no more amusing references to videotapes as we find in current section 110AA. 

Thirdly, we will pay careful regard to the broader international legal and economic context, we all know that Australia’s laws cannot exist in a vacuum, they must operate efficiently within a global copyright system.  That is particularly important as the Abbott Government continues, to number among its signature achievements, the negotiation of free trade agreements with our major trading partners, which, as you all know, contain important provisions concerning copyright and other intellectual property issues.  

On the major ALRC recommendation of fair use, the Attorney-General remains ‘to be persuaded that this is the best direction’ but nevertheless he will ‘bring an open and inquiring mind to the debate.’ He also noted his concerns about online piracy, and suggested some of the actions he would consider in response, including ISPs issuing graduated warnings or taking down sites containing infringeing material. 

In closing, in the words of the Attorney-General:

The challenge for us today is how to balance the benefits for creators against a range of other public interests including the interests of users, educators and other important public goods… I wish you well in your deliberations and look forward to constructive engagement with you as we develop our law reforms in this very important area.   

The full text of the Attorney-General’s speech can be found here and an outline of the main recommendations here.