AG outlines ALRC recommendations in response to question without notice 06/12/2013
Senator SMITH (Western Australia) (14:57): My question is to the Attorney-General, Senator Brandis. Can the Attorney-General advise the Senate of the Australian Law Reform Commission recommendations in relation to copyright law reform?
Senator BRANDIS (Queensland—Deputy Leader of the Government in the Senate, Vice-President of the Executive Council, Minister for Arts and Attorney-General) (14:57): The Australian Law Reform Commission has just completed a major inquiry into copyright and the digital economy. It provided the final report to the government on Monday. The ALRC inquiry is the most significant review of the Copyright Act since the act came into operation in 1968, and has attracted strong interest with over 850 submissions. The government wishes to thank those who contributed to the work of the inquiry by making submissions. The inquiry examined whether exceptions and statutory licences in the Copyright Act are adequate and appropriate in the digital environment, and whether further exceptions to copyright should be recommended. Among other things, the ALRC was asked to consider whether further exemptions should recognise a fair-use exception in relation to copyrighted material. The ALRC has made a number of recommendations arising from the inquiry. It has recommended the introduction of a flexible fair-use exception as a defence to copyright infringement. It has also recommended retaining and reforming some of the existing specific exemptions and introducing certain new specific exemptions; amending the act to clarify the statutory licensing scheme; limiting the remedies available for copyright infringement to encourage the use of orphaned works; reforming broadcasting exemptions and amending the act to limit contracting-out terms. The government will be responding to the ALRC report in the new year.
Senator SMITH (Western Australia) (14:59): Mr President, I have a supplementary question. Why is the appropriate protection of intellectual property rights important to Australia's creative industries?
Senator BRANDIS (Queensland—Deputy Leader of the Government in the Senate, Vice-President of the Executive Council, Minister for Arts and Attorney-General) (14:59): Australia's creative industries are not just a vital part of our culture but a thriving sector of our economy. In 2011, PricewaterhouseCoopers estimated that the creative industries in Australia were worth $93 billion, which is around 6.6 per cent of GDP. The industries employ 900,000 Australians or about 8.8 per cent of the workforce, which makes them Australia's seventh largest industry—bigger than construction and bigger than retail. It is important that, just like other workers out in our economy, those who make our great films and record our great albums are entitled to the fruits of their efforts. Without strong, robust copyright laws, they are at risk of being cheated of the fair compensation for their creativity, which is their due and the Australian government will continue to protect them. (Time expired)
Senator SMITH (Western Australia) (15:00): Mr President, I ask a further supplementary question. Can the Attorney-General indicate the government's approach to the protection of intellectual property?
Senator BRANDIS (Queensland—Deputy Leader of the Government in the Senate, Vice-President of the Executive Council, Minister for Arts and Attorney-General) (15:00): Yes, I can. I want to reaffirm the government's commitment to the content industries. It is the government's strong view that the fundamental principles of intellectual property law, which protect the rights of content creators, have not changed merely because of the emergence of new media and new platforms. The principles underlying intellectual property law and the values which acknowledge the rights of creative people are not a function of the platform on which that creativity is expressed. The principles did not change with the invention of the internet and the emergence of social media. So in this changing digital world, the government's response to the ALRC report will be informed by the view that the rights of content owners and content creators ought not to be lessened and that they are entitled to continue to benefit from their intellectual property.
2013 - The Year That Was 06/12/2013
The main focus of policy activity has been the ongoing inquiry into Copyright and the Digital Economy by the Australian Law Reform Commission (ALRC). In June this year, the ALRC published a Discussion Paper proposing wide-ranging changes to Australian copyright law.
Key proposals included:
• introduction of a broad, ‘fair-use style’ exception; and
• abolition of the educational and government statutory licences.
We at the Council are concerned that these proposals would underline the ability of Australian creators and content producers to earn a living from their work without delivering any practical benefits to Australian consumers through greater access to content.
To read more on why we think this you can read our submissions to the ALRC and our information sheets The Council has played a key role on advancing the interests of creators and content producers as part of the policy debate, with its Executive Director, Fiona Phillips, serving on the ALRC’s Advisory Committee.
At the time of writing, the ALRC has delivered its final report to the Government and we await its tabling in Parliament.
Yesterday the Attorney General outlined the ALRC’s final recommendations during debate in the Senate and indicated that the Government would respond in the New Year. Read them here.
We look forward to reading the report and to engaging in the debate that is sure to follow in 2014.
IT Pricing Inquiry
In July this year, the House of Representatives Standing Committee on Infrastructure and Communications published its report on the Australian Inquiry into IT Pricing. The Report made a number of recommendations, including removing the restrictions on parallel importation in relation to books and films in the Copyright Act, banning market segmentation through ‘geoblocking’ and creating a right of digital resale.
As we noted in our news alert at the time these recommendations cut across many other government reviews, including the review by the ALRC. While nobody wants to pay more for goods or services than they have to, we query the practicality of many of the Committee’s recommendations. One is left to ponder whether the Committee’s recommendations are addressing old business models and whether the digital economy has moved on?
After 2012, which saw a number of landmark copyright decisions in Australia, 2013 has been a much quieter year. However, this newsletter would not be complete without mentioning the growing body of fair use jurisprudence in the United States and the focus of the courts on whether the underlying copyright material has been used in a way that is ‘transformative’. That is, in a way that is new or unexpected.
There are four factors that make up the fair use defence in the US Copyright Act:
1. the purpose and character of the use (of which transformative use is a part);
2. the nature of the underlying copyright material;
3. the amount and substantiality of the portion used; and
4. the effect of the use on the potential market for or value of the underlying copyright material.
However, in recent years there has been a trend for the courts to treat ‘transformative use’ as the paramount factor. This has been evident in two cases to come out of the US in recent months.
Prince v Cariou
This case involved the use of entire photographs taken by Patrick Cariou in the work of renowned appropriation artist, Richard Prince. An appeal court held that Prince had used most (but not all) of the photographs in a transformative way, and this therefore amounted to fair use. As former Copyright Council Board member, Chris Shain, noted in a piece in ArtsHub, this gave rise to a situation where the court was making artistic judgments.
We understand that the US Supreme Court has recently declined to hear an appeal of this decision.
This means that the decision will continue to apply in US law, as was seen in the recent Google Books decision.
As we reported in our recent news alert, a US court has decided that Google’s digitisation of in-copyright books amounted to fair use.
While this is clearly a significant decision, there are some important points to note:
1. Fair use cases inevitably turn on the particular facts. Here, the court was concerned with “snippets” of text being used for online searching. It is not apparent whether the same result would apply to more substantial portions (or indeed entire works as in Prince v Cariou).
2. The court did not focus at all on the commercial nature of Google’s operations. It will be interesting to see whether this gets any further consideration on appeal (the Authors’ Guild has indicated its intention to appeal).
3. The court placed significant weight on the supposed ‘transformative’ nature of Google’s use of the books. It is not apparent that Australian courts would interpret the four fair use factors in the same way were fair use introduced here. Ordinary principles of statutory interpretation would suggest that the courts give equal weighting to each factor.
4. One way to make sense of ‘transformative use’ is by looking at the purpose of the copyright power in the US Constitution. It is to advance ‘science and the useful arts’. By contrast, the copyright power in the Australian Constitution falls under the general (or plenary) power of ‘peace, order and good governance’. This is yet another reason to query how broadly the Google Books decision might apply in Australia.
One of the highlights of the year was our attendance at the Diplomatic Conference to Negotiate a Treaty to Facilitate Access to Published Works for People Who are Blind, Visually Impaired or otherwise Print Disabled.
To read more about the Treaty click here
To read our joint media release with Vision Australia click here
Trans Pacific Partnership Agreement
As we predicted in our newsletter at the beginning of the year, there has recently been a lot of attention around the Trans Pacific Partnership Agreement.
In her analysis of the recently leaked draft text, Associate Professor Kimberlee Weatherall raises some valid questions about the role of trade agreement negotiated outside the WTO and the prescriptive drafting style of the TPP and other trade agreements. Her analysis of the IP enforcement provisions also makes a useful contribution in informing debate.
Debate is a good thing and should be encouraged in a democracy. However, we are concerned that too much of the debate on the TPP has been ill-informed. For the record, here is our take on the issues:
1. We live in a global economy.
2. This makes the need for global standards more important than ever.
3. Progress through the World Trade Organisation has been difficult to achieve. This has led to the proliferation of bilateral and multilateral trade agreements in recent years.
4. The TPP is one such example. It is an economy-wide agreement. It is not just about IP.
5. The Australian Government has repeatedly stated that its objective is to negotiate an IP chapter that is consistent with existing Australian law.
6. If the Government achieves this objective, there is little to be feared by Australian copyright interests. In fact, there are likely to be real advantages.
7. The text that has been leaked is negotiating text. It does not represent the final deal.
8. Transparency is important. To this end, we note that the Government has engaged in extensive public consultations. We also note that any treaty will also be subject to parliamentary scrutiny.
9. The concerns being raised about transparency in the content of copyright negotiations apply equally to any agreement negotiated outside the UN or WTO framework. These agreements happen all the time. It is not some ‘copyright conspiracy’ as some stakeholders would have you believe.
Please click here to view an article that was originally published in Education Technology Solutions Magazine which discusses what the copyright issues are for new technological tools and new sources of material for teaching and learning.
Google Books Project: Fair Use 15/11/2013
On 14 November, Judge Denny Chin of the United States District Court delivered his opinion in the longstanding dispute between the Authors’ Guild and Google.
The dispute relates to the Google Books Project by which Google has scanned more than 20 million books since 2004, delivered digital copies to research libraries, created an electronic database of books and made text available for online searching through the use of “snippets”. Many of the scanned books were in copyright, however Google did not seek permission of the copyright owners to undertake the project.
In 2005 the Authors’ Guild brought a class action against Google for copyright infringement. After extensive negotiation, the parties reached a settlement (see previous news alert here) however this was rejected by Judge Chin in 2011 on the basis that it was unfair. There followed a series of procedural twists and turns which ultimately saw the parties bring an application for summary judgment. Judge Chin’s opinion is in response to that application.
Judge Chin held that while there was a prima facie case of copyright infringement, Google was entitled to rely on fair use as a defence (as were the libraries). “Fair use is a defense to a claim of copyright infringement. The doctrine permits the fair use of copyrighted works 'to fulfil copyright’s very purpose, '[t]o promote the progress of Science and the Useful Arts.' ” 
After setting out the benefits of the Google Books Project, Judge Chin looked at each of the four fair use factors:
1. the purpose and character of the use;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used;
4. the effect of the use upon the potential market for or value of the copyrighted work and the relevant authorities.
“[i]n my view, Google Books provides significant public benefits. It advances the progress of the arts and sciences, while maintaining respectful consideration for the rights of authors and other creative individuals, and without adversely impacting the rights of copyright holders.” 
The decision comes just days before the Australian Law Reform Commission (ALRC) delivers its report on Copyright and the Digital Economy to the Attorney-General.
An initial reading of Judge Chin’s opinion confirms the importance that “transformative use” has assumed as part of the analysis of the first fair use factor in American jurisprudence. It also highlights the significance of the purpose behind the copyright power in the US Constitution.
Unlike the US, the copyright power in the Australian Constitution is not purposive. Nor is it apparent that Australian judges would apply a similar approach to statutory interpretation as US courts. These are likely to be significant issues should the ALRC recommend the introduction of fair use in Australia.
We understand that the Authors Guild intends to appeal Judge Chin’s decision.
The decision is available here.
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Ireland Releases Outcome of Copyright Review: Modernising Copyright 30/10/2013
Ireland Releases Outcome of Copyright Review: Modernising Copyright
This week, the Irish Government published the outcome of its review of Irish Copyright Law: Modernising Copyright.
Readers may recall that back in 2011, at the same time that the Australian Government announced its intention to give the Australian Law Reform Commission (ALRC) a reference to inquire into Copyright, the Irish Government also established a Copyright Review Committee. The terms of reference for the review were to:
1. “ Examine the present national copyright legislation and identify any areas that are perceived to create barriers to innovation.
2. Identify solutions for removing these barriers and make recommendations as to how these solutions might be implemented through changes to national legislation.
3. Examine the US style ‘fair use’ doctrine to see if it would be appropriate in an Irish/EU context.
4. If it transpires that national copyright legislation requires to be amended but cannot be amended (bearing in mind that Irish copyright legislation is bound by the European Communities Directives on copyright and related rights and other international obligations), make recommendations for changes to the EU Directives that will eliminate the barriers to innovation and optimise the balance between protecting creativity and promoting and facilitating innovation. “
The Report makes wide-ranging recommendations, which include:
• The establishment of a Copyright Council of Ireland as a statutory body to protect copyright and the general public interest and encourage innovation. Its role would extend to the establishment of a Digital Copyright Exchange and an Alternative Dispute Resolution process as well as an Orphan Works Licensing Agency;
• The establishment of special intellectual property tracks in the Irish court system;
• “Rightsowners Amendments” including amendment of the duration of copyright in unpublished material, the definition of broadcast and the express protection of metadata applied to photographs;
• “Intermediary Amendments” including an express provision that linking is not an infringement of copyright and “the creation of a very narrow exception under copyright, permitting the use of a very small snippet of the linked work (generally 140 characters, or 2.5%; subject to a cap of 40 words) reasonably adjacent to the link”;
• “User Amendments” including making the existing fair dealing exceptions “open-ended”, the introduction of private copying and parody or satire exceptions (similar to those which exist in Australia) and a new exception for non-commercial user-generated content. In addition, new education exceptions for illustration, teaching and research are proposed, as well as exceptions for people with a disability.
• “Heritage Amendments” including extending the copyright deposit provisions to digital publications (similar to what is proposed in Australia);
• A “Fair Use Amendment” which would be tied very closely to existing exceptions and would only apply when those exceptions were exhausted (this proposal seems to have some synergies with s 200AB “the flexible dealing exception” under existing Australian law);
The Report includes draft legislation.
At first glance, some of the Irish Copyright Review Committee’s recommendations already appear to be part of Australian law, while the practical application of others (for example, in relation to non-commercial user-generated content) is less certain. What is apparent, however, is that this is a more balanced package of reforms than that proposed by the ALRC in its June 2013 Discussion Paper. Indeed, in the introduction to its Report, the Irish Copyright Review Committee notes that “Australia is on the cusp of a truly radical transformation”.  Whether this turns out to be so, we will have to wait for the ALRC’s Final Report.
The Report is available at the following link:
 Modernising Copyright, p 7.