AFACT argues to keep copyright status quo

While technology companies have broadly called for an overhaul of Australia's copyright law, the content industry has questioned the need for the law to be changed, saying that the law is not stifling technological innovation.

Tech companies, such as eBay, iiNet, and Optus, have argued to the Australian Law Reform Commission (ALRC) that Australia's Copyright Act is outdated for the modern age, with the law restricting the use of cloud storage, web search, and even caching.

The content industry has struck back, however. And in a joint submission (PDF) from groups representing copyright holders, such as the Australian Federation Against Copyright Theft (AFACT) — which lost its copyright infringement court battle against iiNet this year — it has argued that there was "no compelling evidence" to suggest that Australia's copyright laws have restricted commercial activity in Australia.

"Assertions that are sometimes made to this effect have never been established and are all too often, understandably, conditioned by the commercial interests of those making such assertions," the submission stated.

"Technological developments in the last several decades — including the development of software, telecommunications, the internet, etc, have developed with copyright laws in place. In the last decade, the digital agenda laws have done nothing to stifle legitimate economic activity, restrict consumer offerings, or hold back the development of useful technology."

In their submissions, iiNet and Optus both flagged that caching was technically not allowed in Australia under the current copyright law, and this was also backed up by search giant Google in its submission (PDF).

"More than 15 years after search engines first came to be widely used, there is a significant business risk from locally hosting search in Australia due to legal uncertainty. The legal uncertainty is whether the standard search engine activities of crawling, indexing, and caching involve the making and communication of works which infringe copyright under the Copyright Act," Google said.

"This is not just problematic for companies that provide search technologies, as more locally hosted content would provide advantages for all Australians in terms of reduced latency and bandwidth costs, and provide more key infrastructure building blocks for the Australian digital economy."

But the copyright holders argued that, to date, no company in Australia had been prevented from caching.

"It would be an extraordinary suggestion to make that the development of the internet is not advancing in Australia because of a lack of additional freedom to undertake caching and indexing activity," the submission stated.

"Providers of caching and indexing activities also have the benefit of a number of existing exceptions and provisions that would limit any risk of liability, or monetary, or non-monetary exposure for those functions, absent infringing activity."

Google argued that exceptions in the Copyright Act allow for temporary reproductions, but do not allow the companies to communicate those reproductions to the public. This means that, overall, the legality of caching in Australia is "highly uncertain."

The content industry called for the ALRC to consider extending its inquiry to look at greater enforcement of copyright, given the prevalence of copyright infringement of film, television shows, and music online.

"This inquiry ... cannot ignore enforcement if it wishes to have a balanced and principled discussion of copyright law and the digital economy."

In a separate submission, the Australian Content Industry Group highlighted its involvement with the government and the telco industry to put together a voluntary industry code to crack down on online copyright infringement that would involve a graduated response scheme similar to what is in place in the US and France. The group said that the ALRC should also consider the value of such a scheme as part of its review.

The group said that the often-cited excuse in Australia, that content is simply not available legally, can no longer be used as a reason for copyright infringement.

"It is abundantly clear that creative industries and ISPs will increasingly be working together on more commercial opportunities to offer value-ads to Australian consumers, such as video on demand, subscription music offerings, and the like."

"While several years ago it might have been reasonable to criticise the content industries for not making material available, this is no longer the case."