Australia’s New Copyright Reforms: Everything You Need To Know

Copyright laws poorly reflect the digital reality we live in today, which is why the Australian Law Reform Commission (ALRC) has been conducting a long-running investigation into how they might be changed. Those recommendations have finally been published this week and could affect creative work online and even whether you can record TV shows to watch later, but what exactly do they mean — and will any of the proposed changes ever happen?


The Copyright And The Digital Economy Report (full version here, summary here) was completed in December 2013 after 18 months of investigation). It makes recommendations around fair use of existing material, including whether or not you can convert material and record it for later use. We haven’t covered every recommendation here — there are complex discussions around the retransmission of TV stations by other networks, the role of libraries, and what happens to “orphan works” whose authors are not known — but have concentrated on those proposed changes that might have immediate impact on consumers.


Fair Use

The big headline recommendation in the report is the introduction of a fair use clause into Australian law, which would (in simplistic terms) allow the remixing and reuse of existing works for the purposes of comments, criticism or parody. In other words: memes involving images from popular movies or TV might be legal, which they aren’t currently. (You’re not that likely to be sued for creating a meme unless you try and sell it on a T-shirt, but you wouldn’t have much of a defence if you did.)

“Many people innocently infringe copyright in going about their everyday activities,” the report notes. “Reforms are recommended to legalise common consumer practices which do not harm copyright owners.

That doesn’t mean you can essentially copy or view anything. In particular, the report notes:

If a licence can be obtained to use copyright material, then the unlicensed use of that material will often not be fair. This is vital to ensuring copyright law continues to fulfil its primary purpose of providing creators with sufficient incentive to create.

Fairness factors

But just what would a fair use principle allow? The report identifies four “fairness factors”:

  • How the material is used
  • The nature of the material
  • The amount and substantiality of the material used
  • The effect on the value of the material

Those last two clauses would mean that a brief clip from a movie might be allowable in a news report, but a wholesale revoicing of Star Wars probably would not.

It report gives 11 “illustrative purposes” where fair use might be allowed:

(a) research or study;
(b) criticism or review;
(c) parody or satire;
(d) reporting news;
(e) professional advice;
(f) quotation;
(g) non-commercial private use;
(h) incidental or technical use;
(i) library or archive use;
(j) education; and
(k) access for people with disability.

Introducing fair use principles associated with these areas would simplify the Copyright Act by eliminating current highly specific clauses relating to “fair dealing”, which cover some of those areas (such as news and education) but not others (such as non-commercial private use)

Time shifting and format shifting

Currently, individual Australians are allowed to record TV shows for later private viewing, and to “format shift” material they already own, though the latter policy has lots of exceptions (you can’t rip DVDs, for instance). The report actually recommends that these specific laws be ditched and that fair use rules be applied to set these policies:

The existing exceptions for time shifting broadcasts and format shifting other copyright material [should] be repealed. Instead, fair use or the new fair dealing exception should be applied when determining whether a private use infringes copyright. These fairness exceptions are more versatile, and are not confined to technologies that change rapidly.

That could be good, insofar as it would mean new technologies wouldn’t require new legislation. If, however, the current provisions that block removal of any digital rights management (DRM) are retained, we’d essentially be no better off.

Will anything happen?

Just because the report has been tabled in Parliament doesn’t mean that there will be immediate action. The government may well decide to ignore it entirely, or to only implement some recommendations. Lurking in the background is the controversial Trans-Pacific Partnership (TPP) trade agreement, which is likely to require wholesale changes to copyright law, but which has not been made public in an official form. If it happens, the whole discussion might effectively be mothballed.

Given that the Coalition currently does not have control of the Senate, it seems quite unlikely that we’ll see any change before the middle of the year. So while the promise of copyright law reform has been dangled, for the moment nothing has changed.

Update: And it turns out the current government is inclined to ignore the recommendations but try and make ISPs enforce anti-piracy rules. Oh good.

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Copyright reform needed to drive economy: Labor

Australians should have the same right to creative content as citizens of the US and be free to innovate using digital technology, opposition communications spokesman Jason Clare will say today.

Mr Clare will deliver a speech to the Tech Leaders forum on the Gold Coast on Tuesday where he is expected to back recommendations by the Australian Law Reform Commission on Copyright. The review, released by Attorney General George Brandis last week,contains 30 recommendations to relax and modernise copyright laws to allow Australians “fair use” of copyright material.

A provision for “fair dealing” already exists for media and the educational sector allowing copyrighted material to be used for the purpose of review, criticism, news reporting and study. But the controversial proposal suggests anyone should be able to use material in a way that is fair, such as recording TV programs, film and music, or storing them online in the cloud.

The copyright act was reviewed in 2006 to include time-shifting – the practice of recording TV programs for later viewing – until then prohibited, but it is still not technology agnostic, technically only allowing for the use of video tapes for recording.

Mr Clare told Fairfax Media he had spoken to technology companies, including Google and eBay in Silicon Valley, and understood fair use provisions helps create an environment where new business models such as cloud storage and search engines are allowed to flourish. Search engines partially reproduce material for the purpose of search results, while cloud companies store copies of original material.

He said the arguments were “very compelling”.

Although Australia wasn’t Silicon Valley, he said digital technologies made it successful and are “critical to the success of countries like ours”.

“It’s the countries that best adapt to digital disruption that will be the most innovative, most productive, the wealthiest and the most successful.”

He said the trip, had “opened my eyes to the need to look at this very seriously and make sure out laws are up to date with the needs to create a vibrant digital economy.”

Having read the Commission’s recommendations, Mr Clare said he would now discuss them with Australian tech industry and with former attorney general Mark Dreyfuss before formulating a policy to take to the shadow cabinet.

“The best way to make public policy is to sit down with Australian industry. I think it’s important that politicias talk to everybody” who can inform their decisions, he said.

The MP for Blaxland said he hadn’t yet made the decision to oppose Senator Brandis’ proposal for a warning system on copyright violations but he would keep an open mind.

“I suspect Malcolm Turnbull has a different view [to Mr Brandis]. He said in a blog post last month we need to do everything we can to remove obstacles to innovation. He meant crowdfunding and employee share schemes, but the same argument could be used for fair use. I suspect the debate will happen between George Brandis and Malcolm Turnbull.”

“We have to make sure we have the right laws in place [to] ensure innovation and productivity and encourage the technology industry in Australia.”

Senator Brandis flagged he may side with copyright holders such as the film and recording industries and water down the reform by introducing requirements for internet service providers to warn customers when they download pirated material.

The film and television industries have long opposed changes to the act which they see as an erosion of the rights of copyright holders.

Optus and iiNet have rejected that proposal as an additional burden.

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Copyright News

Major changes are on the horizon for copyright law in Australia. As the Creationistas video illustrates, there are extensive problems with the way copyright law works in Australia and change is needed.

There are three projects in the works in Australia and internationally that will have a major impact on the future of copyright and intellectual property laws in Australia.

  1. The Australian Law Reform Commission has completed an inquiry about Copyright and the Digital Economy in Australia. The final report was released in the middle of February 2014.
  2. The Marrakesh Treaty to Facilitate Access to Published Works for Persons who are Blind, Visually Impaired, or otherwise print Disabled
  3. Trans-Pacific Partnership Agreement

It is unclear at this point how these three projects will work together to shape the future of copyright and intellectual property in Australia.


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