In April, the Productivity Commission published a draft report of its recommendations on intellectual property arrangements in Australia. Amongst other issues, one of the areas that received a significant shakeup was copyright law, with the Commission putting forward suggested changes regarding copyright term lengths, a new fair use exception, circumventing geoblocking and a repeal of the restrictions on parallel importing of books.

Copyright Law and Copyright Term

The Commission claims that Australia’s copyright arrangements are weighted too heavily in favour of copyright owners as they are too broad and excessive. This relationship negatively affects the long-term interests of consumers and other users who are interested in the work.

Most significantly, the Commission suggests that the term of copyright, which currently lasts for the creator’s life plus 70 years, is too long. Research has shown that the commercial life of most works are less than five years and work has often been ‘orphaned’ in cases where the copyright holder is not identified but others still cannot use it. To have a copyright term more in line with current uses of copyright, the Commission suggested the reduction to 25 years from 70.

Fair Dealing to Fair Use

The exceptions to copyright were deemed to be too narrow and not an accurate reflection of the way people consumed and used content in the digital world. The Commission recommended that Australia’s current four different fair dealing exceptions should be replaced with a US-style fair use exception instead. This exception would be broader and more open-ended, allowing courts to make judgments in the face of new technology and developments. Courts will be able to take into account ‘fairness factors’ in deciding whether copyright material is being infringed, including:

  • The effect on the value of the copyrighted work at the time of use;
  • Proportion of the work used and how much of it was transformed;
  • Commercial availability of the work;
  • Purpose of the usage.

The report acknowledged arguments against this change, the key argument being legal uncertainty as copyright holders will have to rely far more on the interpretation of the courts. This case was ultimately seen as not compelling enough as courts have been analysing and interpreting legislation for Arguments against fair use is legal uncertainty as copyright holders will have to rely on court interpretation; the Commission decided this wasn’t a compelling enough reason as courts interpret the application of law all the time.

No Geoblocking

The report further identified that the best way to reduce online copyright infringement or online piracy is to improve the timeliness and cost of access to legitimate copyright-protected works, including movies, TV shows or games. It criticised the ‘pervasive’ application of geoblocking that many sites such as Netflix have in place, which essentially segments the internet into different markets by location and allowing them to charge different prices for each. The result of this is that Australians are often being offered a lower level of digital service at a higher price.

Consumers who have learned to circumvent the geoblocks through the use of proxy servers and virtual private networks (VPNs) were described as ‘savvy’, with the Commission recommending that the Government make clear actions such as these will not constitute an infringement of copyright law.

Repeal of Parallel Imports on Books

Finally, in a move long anticipated, the Commission also recommended that the parallel import restrictions placed on books to be repealed. These restrictions are under section 112A of the Copyright Act, which states that parallel imports by booksellers for resale are forbidden where an Australian publisher with exclusive rights has published the title within 30 days of its original overseas publication. Describing it as the ‘analogue equivalent’ of geoblocking, the Commission recommended the repeal of this section no later than by the end of 2017.

Key Takeaways

Evidently, the Commission is trying to modify existing copyright laws so that it better fits the current context, which is dominated by digital technology and online developments. These changes, if enacted, will affect the rights of copyright holders in particular. Copyright holders and users should stay up to date with the Commission’s report. Currently, comments on the report are due by 3 June, and the final report will be given to the Government in August.

Anthony Lieu

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