Prof. Jill McKeough to lead ALRC review of copyright law and exceptions
Australia’s Attorney-General, the Hon Nicola Roxon MP, has appointed Professor Jill McKeough to lead an upcoming inquiry into Australia’s copyright laws1. Although the terms of reference for the Australian Law Reform Commission inquiry are yet to be finalised, it is understood that a focus will be on the adequacy and appropriateness of the current exceptions to copyright infringement, in particular in the digital environment. These current exceptions include the exception relating to the “time shifting” of television broadcasts, which was the basis of the defence raised in the recent high-profile Federal Court ruling about Optus’ TV Now personal video recording service.
Copyright exceptions in Australia and overseas
The copyright laws of many countries provide a range of exceptions to what would otherwise amount to copyright infringement. In many cases, these exceptions are founded in the interests of public policy, consumer convenience or the fostering of competition. Examples of such exceptions include allowances for the reproduction of copyright material when reporting the news or the reproduction of copyright material in the course of a technical process, such as the temporary reproduction of an MP3 song in a computer’s memory during the course of playback. Jurisdictions differ, however, between the form and expresssion of the exceptions contained in their copyright statutes.
Exceptions and fair use in the United States
In jurisdictions such as the US, comparatively few exceptions or limits on copyright protection are codified in legislation. Instead, US copyright law2 lists a non-exhaustive set of “fair uses” of copyright material that will not infringe copyright, such as reproduction for the purposes of satire, review or reporting the news. Importantly the fair use provision also nominates four factors—the purpose and character (commercial, educational or otherwise) of the use, the nature of the copyright work used, the size and significance of the reproduced portion of the work and the effect of the use on the commercial value of the copyright work—to be considered when determining whether any other use of a copyright work is “fair”. The open-ended nature of this provision has led to the evolution of a rich body of case law in which US courts have applied the policy foundations enshrined within US copyright legislation when determining whether the use of a particular new technology is “fair” or infringing.
Exceptions and fair dealing in Australia
By contrast, the Australian Parliament has opted for a more prescriptive approach, inserting into the Copyright Act various specific exceptions to infringement on a piecemeal basis. These exceptions include a finite range of permitted “fair dealings” such as those for the purpose of:
- research or study;
- criticism, review, parody or satire; or
- reporting news.
Other exceptions to copyright infringement include:
- the “format shifting” of videotaped films, photographs or CDs for private use;
- the parallel importation in certain circumstances of books, computer programs and sound recordings; and
- the recording of television broadcasts for viewing at a more convenient time (“time shifting”).
This prescriptive approach to copyright limitations provides greater certainty to copyright owners regarding the extent of their rights, however difficulties can arise when new technologies challenge the fundamental assumptions upon which the relevant provisions were drafted. This was demonstrated in the recent decision of Singtel Optus Pty Ltd v National Rugby League Investments Pty Ltd (No.2)3, in which Justice Rares of the Federal Court ruled that an internet-based TV recording service provided by telecommunications company Optus did not infringe the copyright subsisting in live sports broadcasts, effectively because there was no real difference between a user of this service and someone who uses a personal video recorders in the home which is not an infringement.
The ALRC copyright review
Former Attorney-General, the Hon Robert McClelland MP, first announced an Australian Law Reform Commission review into Australia’s copyright law in February 2011, and subsequently clarified that the inquiry would examine:4
whether the exceptions in the Copyright Act are adequate and appropriate in the digital environment … In a fast changing, technologically driven world it is vital for us to see whether the existing statute is appropriate and whether [the Act] can be improved.
The terms of reference are expected to be released this quarter for public consultation, and it remains to be seen whether they contemplate a move to a more generalised open-ended US-style fair use provision or, more narrowly, the modification of existing exceptions to copyright law to encompass recent technological developments.