In his
Address At The Opening Of The Australian Digital Alliance ‘Fair Use For The Future: A Practical Look At Copyright Reform’ Forum [
PDF] the Australian Attorney-General yesterday commented that
I firmly believe the fundamental principles of copyright law, the protection of rights of creators and owners, did not change with the advent of the internet and they will not change with the invention of new technologies.
The principles and values 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.
However, this does not mean that I believe that Australia’s copyright laws are not in need of reform. Quite the contrary.
The Copyright Act is overly long, unnecessarily complex, often comically outdated and all too often, in its administration, pointlessly bureaucratic. …
As you all know, the key recommendation of the [ALRC] Report is that Australia adopt a ‘fair use’ exception to copyright, and the business of the day, for you today, is to consider the ‘fair use’ extension.
I remain to be persuaded that this is the best direction for Australian law, but nevertheless I will bring an open and inquiring mind to the debate.
The A-G went on to state
As the Government considers what direction it wishes to take in response to the ALRC report, let me commit to a couple of things.
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.
We will do this in a way that ensures appropriate protection of copyright material in the digital age and encourages culturally and economically beneficial uses of material that do not undermine fundamental copyright principles. That of course is the balance to be struck and the merits do not lie entirely on one side of the scale or on the other.
Given lobbying after the iiNet and
TvNow decisions it is unsurprising that the A-G went on to comment -
I want to use the opportunity of this address to make a few remarks about the issue of online piracy.
While, as I said before, I do not believe the fundamental rationale of copyright changed with the internet, I am of the view that the internet poses a particular challenge in the area of online piracy.
The illegal downloading of Australian films online is a form of theft. I say Australia films, but of course the illegal downloading of any protected content is a form of theft.
Some stakeholders have sought the introduction of laws aimed squarely at the scourge of online piracy.
While I am sympathetic to their views and am interested in examining new measures that will cut rates of online piracy in Australia, I am not unmindful of the policy challenges of developing the most efficacious regime to do so.
Let me give you an example. The Great Gatsby, Australia’s most successful film at the local box office last year, is now centre stage after its haul of 13 AACTA Awards and an Oscar nomination.
Unfortunately the success achieved by The Great Gatsby can lead to piracy of the film, placing the sustainability of our screen industry at risk.
One area for potential reform of this problem may be section 101 of the Copyright Act.
This provision provides that an entity which authorises the infringement of copyright without the copyright owner’s permission is liable for that infringement.
It was thought that these provisions were ‘technology neutral’ and applied to internet service providers, marrying up with the ‘safe harbour scheme’.
However, the High Court’s decision of 2012 in the iiNet case changed the position. The Government will be considering possible mechanisms to provide a ‘legal incentive’ for an internet service provider to cooperate with copyright owners in preventing infringement on their systems and networks.
This may include looking carefully at the merits of a scheme whereby ISPs are required to issue graduated warnings to consumers who are using websites to facilitate piracy.
This is a complex reform proposal, and how it is paid for is one of the principal unresolved issues.
It should also be noted that Australia has international obligations on this point and that the Government will not be seeking to burden ISPs beyond what is reasonably necessary to comply appropriate domestic and international obligations.
As well, I would like to emphasise that this would not put Australian ISPs at a disadvantage by comparison with their counterparts internationally as many overseas jurisdictions have the concept of authorisation liability, secondary liability or similar, which are intended to capture ISPs.
Another option that some stakeholders have raised with me is to provide the Federal Court with explicit powers to provide for third party injunctions against ISPs, which will ultimately require ISPs to ‘take down’ websites hosting infringing content.
Most importantly, in framing any enforcement reforms, my preference would be to facilitate industry self-regulation, as opposed to active and continuing government regulation.
Industry participants are in the best position to develop a flexible, cooperative self-regulatory approach tailored to particular industry needs. Industry cooperation is a key element in tackling online piracy, and I will continue to encourage industry participants to work together to overcome the outstanding issues in contention.
