Just in time for Christmas (amid a tsunami of other consultations) the government has released a discussion paper on the Exposure Draft Copyright Amendment (Access Reform) Bill 2021 and on the Review of Technological Protection Measures Exceptions. Submissions are due 11 February.
The discussion paper indicates that the Exposure Draft of the Copyright Amendment (Access Reform) Bill
aims to simplify and update provisions of the Copyright Act 1968 (the Act) to better support the needs of Australians accessing content in the digital environment. The Bill builds on the Copyright Amendment (Disability Access and Other Measures) Act 2017 and the Copyright Amendment (Service Providers) Act 2018 by providing reasonable and practical measures that reflect contemporary use of copyright material in the public interest, while maintaining appropriate protections and incentives for content creators. The Government has released the Bill, and this discussion paper, so that interested individuals and organisations can have their say on these proposed reforms. The Government is also conducting a review of the technological protection measure (TPM) exceptions in section 40 of the Copyright Regulations 2017
It states that the Australian copyright framework
has been subject to extensive review over recent years. These reviews have assessed how copyright is adapting to the modern challenges of evolving technology, changing consumer usage patterns and broader global trends. They have consistently highlighted the need for a more flexible and adaptive framework to facilitate access to, and dissemination of, creative content in the digital environment. Copyright law is essential in incentivising creators and their industries to produce Australian content and receive payment for their creativity. At the same time, allowing reasonable access to that creative content is critical to enhance learning and Australian culture, and driving new creativity and innovation. The Act seeks to balance the rights of copyright owners to manage and protect their content with the public interest to access that content. It is also important that the Act gives creators, copyright owners and users certainty about the scope of rights and the permissible use of copyright material. A key issue is how to introduce more flexibility in the Act to allow clear and reasonable access to content in the public interest in an increasingly digital world, while maintaining appropriate safeguards to protect copyright owners’ commercial interests.
The Productivity Commission’s 2016 Intellectual Property Arrangements inquiry and Australian Law Reform Commission’s 2013 Copyright and the Digital Economy inquiry recommended adopting a broad ‘fair use’ copyright exception to replace Australia’s narrower, purpose-based ‘fair dealing’ exceptions and some other specific exceptions.
A ‘fair use’ system (such as in the United States) is a principles-based system that allows the use of copyright material if it is ‘fair’. By contrast, a ‘fair dealing’ exception regime allows the use of copyright material for certain purposes specified in the legislation. Proponents of fair use argue that it is a more flexible legal tool, capable of accommodating new and valuable fair uses of copyright material without waiting for legislative change. The PC inquiry overlapped with copyright reforms that were already being developed by the Government. These reforms resulted in the Copyright Amendment (Disability Access and Other Measures) Act 2017 that improved the workability of the Act for the disability, library and archives, and education sectors and included:
• technology neutral exceptions that facilitate access to copyright material for people with a disability, on par with the general community • updated preservation provisions for libraries and archives and other key cultural institutions • new standard terms of copyright protection for works, sound recordings and films, including unpublished material, and • streamlined education statutory licence.
The Government response to the PC inquiry flagged that further consultation was necessary for certain recommendations given the complexity of the issues and different approaches available to address them. The Government’s subsequent Copyright modernisation consultations held in 2018 sought views on flexible copyright exceptions such as fair use and extended fair dealing exceptions; access to ‘orphan works’ (where the copyright owner cannot be found); and ‘contracting out’ of exceptions. ...
The Copyright modernisation consultations highlighted that there is no clear case to move to a broad, principles based ‘fair use’ system. Stakeholders’ views remained polarised, and the evidence base for broader reform was not clear. A change to fair use would represent a significant departure from Australia’s current copyright system of fair dealing and specific exceptions. It would risk introducing ambiguity or uncertainty, which may be difficult and costly to resolve, and in some cases lead to litigation or people simply abandoning use of creative content. While there is no uniform international approach, the large majority of countries rely on copyright frameworks that include exceptions similar to Australia, rather than fair use.
The Government has chosen, at this time, to undertake more specific, targeted reforms to the existing exceptions framework. This framework recognises that certain reasonable uses of copyright material in the public interest should be permitted without the consent of, or payment of money to, the copyright owner. ... incremental reform to this existing exceptions framework would avoid significant disruption to copyright owners’ commercial markets that sweeping reforms may cause.
Shift in the digital landscape
In recent years, the digital landscape has changed significantly with the rise of multinational digital platforms, driven by user-generated content. The Australian Competition and Consumer Commission’s 2019 Digital Platforms Inquiry final report reinforced copyright owners’ concerns that broad flexible exceptions could potentially result in content being exploited by digital platforms for commercial gain. At the same time, the access issues identified by the Government’s Copyright modernisation consultations, the PC inquiry and the ALRC inquiry remained. This COVID-19 pandemic has further highlighted these access issues, with the need for an urgent transition to widespread online and remote learning, and many public institutions having to move their services online. ...
The reforms in the Bill target those sectors that serve important public interests, including the cultural, education, research and government sectors. It will make sure that they can provide their services effectively and efficiently in an increasingly digital environment and, in doing so, enhance access to the wider community. Recognising too the importance of copyright law in incentivising creators and their industries to produce Australian content and receive payment for their creativity, these reforms have been designed in a way to minimise the commercial impacts on copyright owners. For the most part, the reforms relate to non commercial use of copyright material or use that has a limited impact on the commercial market for the material.
Open up access to ‘orphaned’ material
Orphan works (copyright material where the copyright owner cannot be found), can be of great cultural, social or educational value but are generally underused. Many copyright owners cannot be identified or contacted to permit the use of material, even after time consuming and costly searches. This is a significant issue for Australia’s cultural institutions, as they hold huge amounts of orphaned material in their collections. There is a reluctance to use or allow others to access orphan works as there remains a risk the copyright owner could emerge and claim compensation for use of the material, or object to its use altogether. This could result in any new material that uses the orphan work being destroyed, withdrawn or modified at significant expense.
Reduce time, costs and uncertainty of quotation for academics and researchers
Seeking clearances of quotes of copyright material in publications and presentations, particularly when multiple copyright owners are involved, can represent a significant and disproportionate time and cost burden for academics, universities, libraries and archives and researchers. This can sometimes result in academics and researchers abandoning the use of material or risking using unlicensed material in their works.
More certainty and efficiencies for cultural, education and government sectors
The current copyright exceptions available to cultural and educational institutions, and the government statutory licensing scheme, originated in a paper-based era. Many provisions are outdated, narrow and overly prescriptive. This creates uncertainty and exposes our public sectors to a higher risk of legal liability, and imposes significant administrative burden. Many of the reforms aim to provide reasonable and practical measures to allow the use of copyright material fit for a contemporary digital-based society, and improve efficiencies.
The paper features the following questions -
Q 1.1: Orphan works: Application to Copyright Tribunal to fix reasonable terms
Part 11, Division 3 of the Copyright Regulations 2017 sets out the matters to be included in particular kinds of applications and references to the Copyright Tribunal. What matters do you consider should be included in an application to the Tribunal to fix reasonable terms for ongoing use of a former orphan work?
Q 2.1: Quotation: Unpublished material
Should the proposed new quotation fair dealing exception in section 113FA extend to the quotation of unpublished material or categories of unpublished material?
Q 3.1: Libraries and archives: Online access - ‘Reasonable steps’
For the purposes of new paragraph 113KC(1)(b), what measures do you consider should be undertaken by a library or an archives to seek to limit wider access to copyright material when made available online?
Q 3.2: Libraries and archives: Illustrations
Does proposed new section 113KK, which replaces and simplifies current section 53 but is not intended to make any substantive changes to that section, adequately cover all of the matters set out in current section 53 or are there some potential gaps in coverage?
Q 4.1: Education: Online access – ‘Reasonable steps’
For the purposes of new paragraph 113MA(2)(d), what measures do you consider should be undertaken by an educational institution to seek to limit access to copyright material, when made available online in the course of a lesson, to persons taking part in giving or receiving of the lesson, and ensure it is used only for the purposes of the lesson?
Q 5.1: Government: Use of incoming material Does proposed new section 183G contain effective safeguards to avoid unwarranted harm to copyright owners’ commercial markets? If not, what other safeguards would assist?
The consultation paper refers to 'Additional minor measures' -
Sch 6: Registrar of the Copyright Tribunal
The Bill will simplify the process for appointing the Registrar of the Copyright Tribunal. These amendments will align the Act with current practices for the appointment of other Australian court registrars by giving the power to the Chief Executive Officer and Principal Registrar of the Federal Court to appoint, or terminate the appointment of, the Registrar of the Copyright Tribunal.
Sch 7: Streamline the process for making technological protection measure (TPM) exceptions
The Bill will streamline the process for making regulations to create or amend exceptions to liability for circumventing a TPM that controls access to copyright material. The amendment removes the requirement that a ‘submission’ must be made before the Minister can recommend changes to the regulations. Allowing regulations to be made in relation to access control TPM exceptions, where changes are consequential to amendments to the Act or otherwise identified in a review or proceeding, without first obtaining a specific stakeholder submission seeking this, will improve Australia’s ability to maintain a copyright framework that is fit for the digital environment. More information about TPM exceptions, and the current review of the exceptions listed in the Copyright Regulations 2017, can be found at Part B.
Schedule 8: Archives The Bill will update the definition of ‘archives’ to capture current Commonwealth and State archives offices in the Act.
Schedule 9: Referrals to the Copyright Tribunal
The Bill will improve the consistency of language in the Act when referring to applications and references to the Copyright Tribunal.
Schedule 10: Notifiable instruments
The Bill will update the mode of notification required by the Act, changing outdated references to ‘Gazette’ publication to ‘notifiable instrument’.
The paper also covers the Review of Technological Protection Measures (TPM) exceptions, commenting
The Australia-United States Free Trade Agreement (AUSFTA) requires a review of exceptions to the TPM provisions made under the Copyright Act 1968 (the Act) every four years. The last TPM exceptions review occurred in August 2017. Consultation on this Bill provides an opportunity to consider whether existing TPM exceptions should remain and whether any new TPM exceptions should be added to section 40 the Copyright Regulations 2017 (Copyright Regulations). This includes any consequential amendments because of measures proposed in the Bill. All new TPM exceptions, including those that are consequential to the amendments proposed in the Bill, are subject to the criteria for review as set out in subsection 249(4) of the Act (and discussed further below).
Current TPM scheme
Technological protection measures (TPMs) are technical locks that copyright owners, and exclusive licensees, use to stop their material being accessed or copied. For example, passwords, encryption software and access codes. TPMs can be grouped into two broad categories: • Access control TPMs that prevent a person from being able to read, listen to or watch material. • Copy control TPMs that allow a person to read, listen or watch material but prevent a person from making a copy of the material. Australia’s TPM scheme allows for both civil actions and criminal actions in response to unlicensed circumvention of TPMs (see Part V of the Act: Division 2, Subdivision A, and Division 5, Subdivision E).
Specific exclusions
The scheme specifically excludes protection for TPMs that:
• control geographic market segmentation: o For example, consumers can bypass region coding measures to play overseas purchased DVDs or computer programs on Australian devices.
• restrict use of after-market goods or services, including restricting the supply of spare parts or repair or maintenance services by third parties: o For example, a computer printer manufacturer cannot use the TPM scheme to stop generic cartridges being used in its printers. o TPMs used by the providers of computer systems to restrict services being provided by competing computer system maintenance providers are also not protected.
Exceptions to override access control TPMs
The Act provides for a number of exceptions to civil and criminal liability for circumventing an access control TPM. This includes:
• specific exceptions in subsections 116AN(2)–(8) and 132APC(2)–(8) of the Act. These exceptions are not subject to this review, and
• additional exceptions for acts which are prescribed by the regulations (see subsections 116AN(9)(c) and 132APC(9)(c)).
These provisions implement Article 17.4.7(e)(viii) of AUSFTA. The current additional exceptions are set out in section 40 of the Copyright Regulations, and are the subject of this review.
This review covers both existing exceptions to access control TPMs as set out in section 40 of the Copyright Regulations, as well as possible new TPM exceptions to add to the Regulations. Currently, section 249 of the Act allows the making of new regulations in relation to TPM exceptions, and regulations varying or revoking existing regulations, on the recommendation of the Minister. Subsection 249(4) of the Act allows an additional act to be prescribed by the regulations when a submission for is received which provides credible evidence of certain criteria, and the Minister makes a decision to grant an exception. Under subsection 249(8) of the Act existing additional prescribed acts can be revoked or varied through a similar process.
The paper accordingly invites submissions on:
• the appropriateness of the current TPM exceptions listed in section 40 of the Copyright Regulations,
• potential consequential amendments to section 40 of the Regulations due to the Bill.
Submissions should:
1. Identify whether you are seeking a new exception, or to vary or revoke an existing exception.
2. If seeking the variation or revocation of an existing exception, identify the existing exception.
3. If a new exception is sought, clearly outline the exception and the circumstances in which it would apply.
4. Address how the exception does or does not fit the criteria of subsections 249(4) and/or (8) of the Act.
Submissions should provide examples to support whether or not (as relevant):
• the use of the TPM has had an adverse impact on the non-infringing use by the person or body the subject of the exception, or is likely to have such an impact, or
• the TPM exception would impair the adequacy of legal protection or the effectiveness of legal remedies against the circumvention of the TPM.
