May 25, 2014

Dramatic Change to Australian Copyright Unlikely

The Australian Law Reform Commission’s (ALRC) recent report on exceptions and limitations to copyright has received a fairly tepid response from the government.  Dramatic changes to relax Australia’s copyright law seem unlikely for now, despite recent law reform recommendations.

The Report

The ALRC published its report in November last year. Its most notable proposal was to replace Australia’s fair dealing exception to copyright with a US style fair use exception. Under current fair dealing exceptions, a specific list of activities are exempted from copyright liability, provided the specific instance of the activity satisfies a basic fairness standard. Categories of fair dealing include copying for the purpose of research and study, criticism and review, parody and satire, reporting the news, and professional advice.

Under fair use, there is no limited list of exceptions. Instead, courts consider a list of non-exhaustive factors – purpose, nature, amount and substantiality, and the effect on the copyright owner’s market – to determine whether a use of copyright material is fair.

Failing the introduction of fair use, the ALRC recommended significantly adding to the list of fair dealings and introducing additional factors for consideration. The report also dealt with, among other things, statutory licences, and the issue of whether contracting out of particular copyright exceptions should be allowed.

The Response

So far the government has not responded to the report in any comprehensive way, although Attorney-General George Brandis gave a speech on the report when it was tabled in Parliament. His reception of the recommendations was lukewarm. He described the proposals as ‘controversial’ and spoke at some length about strengthening the protection of copyright owners’ rights. Since then he has proposed a crackdown on internet piracy.

It would not be surprising if the current government opted not to adopt fair use exceptions in Australia. The UK, on the recommendation of its own IP law reform report, has opted to stick with fair dealing (albeit with some added categories), rather than adopting fair use in new copyright regulation. Australia may be influenced by this step. Australia also has a history of ignoring radical copyright law reform proposals. Previous reports from the Copyright Law Reform Committee from 1998 and 2002, which recommended rewriting and simplifying the Copyright Act, were basically buried. It is possible that the ALRC’s most recent copyright report may share the same fate.

What This Means for You

The existence of the ALRC proposals should not discourage copyright owners from enforcing their rights, even though the release of the report seemed to coincide with a dampening in copyright litigation. After a flurry of big copyright cases in the past few years, this year has been a quiet one for copyright litigation. While this is understandable, given uncertainty about where the reform agenda is headed, it is not necessary to put copyright litigation on hold. One narrow circumstance where it might be prudent to hold off, would be if parties were seeking clarity about whether a particular business practice falls under a fair dealing exception, in order to make long term plans about that practice. In that circumstance, changes to the law might unsettle those parties’ plans and undo the result of the litigation. Otherwise, copyright owners should feel comfortable about enforcing their rights.