[x-pubpol] ALRC releases Copyright and the Digital Economy Issues Paper

Mon Aug 20 05:24:29 PDT 2012

(via KK)

http://www.copyright.org.au/news-and-policy/details/id/2144/

The Australian Law Reform Commission (ALRC) today released the Issues Paper
for its current inquiry into Copyright and the Digital Economy.

Headed by Professor Jill McKeough (Dean of Law at the University of
Technology, Sydney), the review is focusing on the suitability of current
exceptions and statutory licences in the evolving digital marketplace.

The ALRC seeks comment on a wide range of issues, some of these include:

Time-shifting exceptions and private online use of material

Australian copyright law contains an exception allowing individuals to
record TV broadcasts on their own devices for later private and domestic
viewing.

Technological developments now allow third-parties to record the broadcasts
and store these online in the cloud for the user to then remotely access
and view on his or her connected devices. This issue is being considered by
the courts in litigation relating to the *Optus TV Now* service.

There is some debate as to what extent private users can utilise
third-parties to record material on their behalf and then communicate this
to them via online platforms when relying on the private use exceptions.

Question 9 asks:

*(a) should it matter who makes the recording, if the recording is only for
private or domestic use; and*

*(b) should the exception apply to content made available using the
internet or internet protocol television?*

The increasing pervasiveness of social networking and user–generated online
sites and the use of copyright-protected material on such sites gives rise
to Question 12 that asks “*Should some online uses of copyright materials
for social, private or domestic purposes be more freely permitted?*” and if
so, what limits should be placed on such an exception?

Technical activities such as caching, back-up, data mining and cloud
computing:

A number of websites and other online enterprises reproduce and communicate
copyright material for technical reasons such as operational, data security
or data integrity purposes. Australian law is presently unsettled on
aspects of such copying.

For example, a search engine may store temporary reproductions (referred to
as “caching”) content to power its search platform, or a company that backs
up their data or stores it on a cloud-based platform (which involves
storing both the data itself as well as copies of that data on various
servers in different locations).

Question 4 asks whether copyright law should be “*amended to provide for
one or more exceptions for the use of copyright material for caching,
indexing or other uses related to the functioning of the internet?” If so,
how should such exceptions be framed*?

Question 6 asks whether copyright law should “*be amended, or new
exceptions created, to account for new cloud computing services, and if so,
how?*”

The law is also currently unsettled on the issue of individual users
uploading and storing their copyright-protected material with third-party
online services. Question 10 asks whether copyright law should “*be amended
to clarify that making copies of copyright material for the purpose of
back-up or data recovery does not infringe copyright, and if so, how?*”

Fair Use

At present, Australian copyright law contains “fair dealing” exceptions,
which allow copyright material to be used for a number of specified
purposes (such as parody or satire and criticism or review).

US law contains a “fair use” provision which allows copyright material to
be used without permission but differs from Australian “fair dealing” in
that it has a broader, but less certain application that isn’t limited to
use for a particular purpose.

Question 52 asks whether domestic law should “*be amended to include a*

*broad, flexible exception? If so, how should this exception be framed? For
example, should such an exception be based on ‘fairness’, ‘reasonableness’
or something else?*”

Transformative Uses

Transformative use occurs when a pre-existing work (such as a song, film or
image) is integrated into a new work in such a way that it seen in a new
light or recontextualised in a new and original way. Some “mashups” are an
example of a transformative use. The doctrine is associated with US
copyright law relating to “fair use”.

Digitisation of media along with more powerful software tools for
manipulating such material has allowed people to create and widely
distribute their own mashups, remixes and other works involving
manipulation of sound, images and film created by others.

There is no specific “transformative use” exception under Australian law.
Rather, those using pre-existing source material must look to general
copyright principles and other exceptions (such as fair dealing) or if none
apply, then seek permission to use the source material.

Question 15 asks whether “*the use of copyright materials in transformative
uses should be more freely permitted?*”

Contracting out of exceptions

There is some debate about the role of contract and copyright exceptions.
Question 55 asks whether copyright law should “*be amended to prevent
contracting out of copyright exceptions, and if so, which exceptions?*”

Other issues

Additionally, the paper contains questions relating to the efficacy of the
current statutory licensing schemes for educational institutions and the
special exceptions for libraries and archives, particularly in regard to
the evolving digital context.

Submissions to the ALRC are due on 16 November 2012. The ALRC is expected
to release its report by the end of November 2013.

The Issues Paper can be downloaded from the ALRC’s website at
http://www.alrc.gov.au/publications/copyright-ip42

For a comprehensive table of the exceptions and statutory licences in the
Copyright Act, see our information sheet “Exceptions to Copyright”
available under “E” from our website at
http://copyright.org.au/find-an-answer/browse-by-a-z/

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