Copyright and the Digital Economy - ALRC inquiry needs broader scope

17 May 2012

Australians need a copyright system that works. One they can respect. Our copyright laws need to provide certainty, encourage innovation, and enhance the free flow of information.

The digital economy fundamentally changes the way in which we produce and consume content. We blog, release films made on our smart phone, self publish novels, share music we’ve created, all via the world wide web. As soon as we produce the content, whether we want it protected or not, our copyright laws give the creator the right to control that content. Those rights are not indefinite but they do exist for a long period of time. Generally, the work only falls into the public domain (free for anyone to use) 70 years after the death of the creator.

As you can imagine, this causes problems. How to identify - Who produced the content? Who now owns the content? Has copyright expired? Has the owner provided express usage rights by some public licence scheme like Creative Commons? Can I copy or republish it in certain ways or for certain uses?

These issues are not new. Amendments to the Copyright Act to deal with the digital environment have been made in a piecemeal fashion since 2001. What is new, is that after years of talking about referring the matter to the Australian Law Reform Commission for review the federal government will do so this year.

On 30 March 2012, the federal Attorney General published the proposed terms of reference (in draft) for the ALRC inquiry into Copyright and the Digital Economy. The draft Terms of Reference seem unnecessarily limited. Unless the Terms of Reference are amended the ambit of the inquiry will be quite narrow, frustrating the ability for the Australian Law Reform Commission to produce recommendations on the best ways to rebalance the copyright system to deal with the digital age.

As it stands, the ALRC is asked to inquire and report to the government on:

  • whether the exceptions in the Copyright Act are adequate and appropriate in the digital environment; and
  • whether certain uses of copyright material should be legitimised, in particular, non-commercial use on the internet and transformative use which has public benefit.

If the federal government truly wanted to know how we in Australia could strike an appropriate balance between creators and users of copyright material it would not limit the inquiry to considering only an exceptions-based regime.

The government needs to hear whether reform to copyright should go beyond introducing more exceptions and instead (or in addition) enable opt-in or opt-out features for copyright protection. Not all creators need or even want automatic copyright protection, certainly not for 70 years post mortem. Australia needs to make it easier to identify those who do want copyright protection, not just provide statutory permission for some uses on the internet.

Of course, enabling people to opt-in to copyright protection is not as straightforward as creating additional carve-outs in the Copyright Act to legitimise certain uses. It could require change at the international level first. But if it is appropriate, our voice should be added to the international call for change to allow formalities for copyright protection.

We also need any review of exceptions to be technologically neutral. We can’t keep limping along dealing with new exceptions like time-shifting and format-shifting, rather than addressing what is fair in the realm of copyright.

Copyright has only ever been about promoting creation of content, recognising that without appropriate reward creativity may not occur. We need to ensure that content is not locked and creativity stifled because there are works with unknown authors (“orphan works”) or material we can not ascertain as freely available for use. The government needs to modify its terms of reference to give the ALRC scope to fully explore the viability of a broad fair use regime.

To compete in the digital economy, we need a copyright system that will reward creators while respecting fair use and avoiding administrative and legal complexity. Copyright reform is necessary to achieve this. The opportunity to have the matter investigated by the ALRC does not come along often. We can’t afford to squander the opportunity by limiting the options the ALRC can consider to rebalance the copyright equation.

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