These notes are taken from the paper titled Copyright and the Digital Economy produced by the Australian Law Reform Commission (ALRC). It is an Issues Paper asking for submissions or comments so a new copyright reform can be implemented. It's dated 17th August 2012.
In the inquiry the ALRC is interested in evidence on how Australia's copyright law is affecting participation in the digital economy. Is there evidence about how copyright law:
- affects the ability of creators to earn a living, including through access to new revenue streams and new digital goods and services;
- affects the introduction of new or innovative business models;
- imposes unnecessary costs of inefficiencies on creators or those wanting to access or make use of copyright material; or
- places Australia at a competitive disadvantage internationally.
Other questions raised in the issue paper cover topics like:
- caching, indexing and other internet functions
- cloud computing
- copying for private use
- online use for social, private or domestic purposes
- transformative use
- libraries, archives and digitisation
- orphan works
- data and text mining
- educational institutions
- crown use of copyright material
- retransmission of free-to-air broadcasts
- statutory licences in the digital environment
- fair dealing exceptions
- other free-use exceptions
The issue paper is an 88 page document under review and can be downloaded as a pdf here. This is still a stepping stone toward fixing our outdated copyright legislation, but it will definitely be an improvement to what is already in place. Online submissions are being accepted here. The Final Report is due to be delivered by 30 November 2013.
ALRC Commissioner for the Copyright Inquiry, Professor Jill McKeough, said “Copyright law is an important part of Australia’s digital infrastructure and is relevant to commercial, creative and cultural policy. The questions we are asking in this Inquiry go to whether our current copyright laws are properly aiding the development of opportunities for Australian creators and not unduly hindering the development of new business models while at the same time ensuring appropriate protection for copyright. At the same time, the expectations of a global community to access and use material for a whole range of creative, community, educative and commercial purposes also needs to be considered. We are aware that, in formulating any proposals for reform of copyright law, the costs and benefits to the community must be taken into account” (ALRC, 2012).
Technology has brought new means of copying; digitisation reduces the costs of copying and raises the costs of enforcement. In addition, changes or developments in the attitude of consumers and users of copyright material has led to reduced recognition that copyright is a form of property, that is it owned by a creator (or more usually, the assignee of a creator) and that moral rights and issues of attribution an integrity of works may be significantly compromised in a 'freed up' copyright environment.
Copyright law may not always influence individual or private behaviour, and there is constant debate about whether it acts as an incentive to production of new material. Even where copyright is recognised, infringement may be seen as a form of 'cultural heroism' or regarded as an appropriate consumer response to a large, powerful and greedy multinational company.
We must focus on the rules for access as well as on the social, interactive way people now relate to each other and to copyrighted works...Laws and business models rooted in the early 18th century cannot be effective in the 21st century (ALRC, 2012).
These are some points which interested me from the paper:
Copyright law may not always influence individual or private behaviour, and there is constant debate about whether it acts as an incentive to production of new material. Even where copyright is recognised, infringement may be seen as a form of 'cultural heroism' or regarded as an appropriate consumer response to a large, powerful and greedy multinational company.
We must focus on the rules for access as well as on the social, interactive way people now relate to each other and to copyrighted works...Laws and business models rooted in the early 18th century cannot be effective in the 21st century (ALRC, 2012).
These are some points which interested me from the paper:
- Even Australia's copyright laws are outdated, and the US laws are 'ridiculous' the UK have successfully updated their legislation, as have New Zealand and Canada
- Reform should promote the development of the digital economy by providing incentives for innovation in technologies and access to content
- Reform should encourage innovation and competition and not disadvantage Australian content creators, service providers or users in Australia or international markets
- Laws that are irrelevant and do not fit with community practice are undesirable. This is not to suggest everything should be free, but licensing or exempting what is currently widespread infringement should be considered
- Internet service providers, search engines, web hosts and other internet intermediaries rely on indexing and caching ie. Google use web crawlers to find copies of websites. These copies are then indexed and stored in a 'cache' so when a user enters a search query, Google uses the cached version. Caching improves the internet's performance, allowing search engines fast retrieval of information, but the copying of works by a search engine for the purposes of indexing or caching may infringe copyright. The UK has a specific exception that allows a provider to cache copyright material. New Zealand and Canada have similar exceptions
- Companies that offer cloud computing may also risk infringement, eg. by reproducing or communicating copyright material originally uploaded to their servers by their customer
- Australians routinely make copies of TV shows and films for their private use and later viewing and believe this should NOT be against the law. An amended act introduced in 2007 permits this, but only for 'broadcasted' content - NOT Internet content. So this excludes TV shows and films downloaded from the Internet
- User Generated Content (UGC) reflects a certain amount of creative effort and includes audio-visual excerpts from copyright material such as movies and music. Some of these cases are covered under the clause 'criticism or review' or 'parody or satire'. However much UGC will not fit within these exceptions, e.g. using a copyright sound recording in a home video It has been suggested that a new specific exception should be introduced allowing individuals to make user-generated content where this does not 'unjustifiably harm copyright owners'.
- The term 'Transformative' generally refers to works that transform pre-existing works to create something new. This includes 'sampling', 'remixes' and 'mashups'
- In the US acts are considered 'transformative' as opposed to 'derivative' when they do more than merely 'supersede the objects' of the original creation and 'add something new' with a further purpose or different character, altering the first with new expression, meaning or message
- Authors often draw upon pre-existing works and transform them to create new works that criticise, comment upon or offer new insights - these are considered parodies
- Other well known transformative works include sampling and mashups
- The current Copyright Act provides that fair dealing for the purposes of criticism and review, and parody or satire do not constitute an infringement of copyright however not all use that might be classed as transformative will be parody, satirical or critical. Nor will sampling and mashups - these will usually constitute infringement
- Canada adjusted their laws and created a new exception for UGC by non-commercial users. It provides a right to use, for non commercial purposes, a publicly available work in order to create a new work
- Digitisation offers avenues for better preservation and wider dissemination of works in less costly ways than previously possible and digitisation may also be able to generate returns that were not possible before - like benefits to the copyright holders. On the other hand it may also result in a loss of control as to how works may be used
- Digitisation of analogue work is in fact a reproduction and may constitute copyright infringement and in relation to Indigenous works - communities may consider that works are owned by a collective, rather than an individual as part of an ongoing knowledge tradition so moral rights issues may arise. There is no specific exception in the current Copyright Act that covers mass digitisation projects or digitisation for the purposes of providing public access to works
- Orphan works define the situation where a copyright owner can not be identified or located so orphan works presents a recognised problem in mass digitisation projects undertaken by public and cultural institutions
- In Australia the National Film and Sound Archives estimates that about 20% of the national audio-visual collection is abandoned or orphaned. There are existing models in Canada and the Nordic countries that specifically address orphan works. Access to these works is an important public interest benefit that must be balanced with ensuring that copyright owners are properly compensated for their work
- The growth of digital technology and online social networking has seen increasing amounts of data - text, images and numbers - stored in databases and repositories. Data mining is used across a number of research sectors including medicine, business, marketing, academic and publishing
- Data mining is defined as the copying of existing electronic information, for instance journal articles, and analysing the data they contain for patterns, trends and other useful information.
- The Terms of References refers to the general interests of Australians to access, use and interact with content in the advancement of education, research and culture so data mining in this case needs to be addressed - there is no current exception for data mining
- In regard to educational institutions - there are multiple free-use exceptions and statutory licensing schemes that apply to the use of copyright material by students and educational institutions. These exceptions and how they interact, however, are very complex. The relationship between fair dealing for the purpose of research or study is unclear
- With the current law the Copyright Act does no define a 'fair dealing'. Rather specific fair dealing exceptions exist for the purposes of:
- research or study
- criticism or review
- parody and satire
- reporting news
- legal practitioner, registered patent attorney or registered trade marks attorney giving professional advice
- Not all of these exceptions are available for all types of copyright material. So a question which needs to be answered is should the Copyright Act provide for any other specific fair dealing exceptions? For example, should there be a fair dealing exception for the purpose of quotations, and if so, how should it apply?
References:
Copyright and the Digital Economy Issues Paper: Australian Law Reform Commission. August 17th, 2012.
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