Attorney-general commissions cost-benefit analysis of digital copyright reform

An economic analysis into the ALRC's recommendation to adopt a flexible fair use provision in regards to digital copyright in Australian law has been commissioned, with the AG concerned about the costs to rights holders.
Written by Corinne Reichert, Contributor

The Australian Attorney-General's Department has commissioned a cost-benefit analysis into the recommendation by the Australian Law Reform Commission (ALRC) to implement a fair use provision in the amendments that the government is proposing to make to the Copyright Act in order to adapt to the digital world.

The economic analysis, announced on Wednesday, will examine the cost effects that fair use would impose on copyright holders along with copyright user groups.

The former Labor government initially called for a review of the Copyright Act in 2012 to consider whether the Act had been outdated by the changes in digital technology, and whether it should consequently be updated. The ALRC submitted a report to the government on the matter, but in December 2013, Brandis indicated the government's intention to put the report on the backburner until 2014.

In February 2014, the ALRC's report, titled Copyright and the Digital Economy, was finally tabled in Parliament, setting out various provisions to be added to the amended legislation.

The ALRC argued that similar to the laws in the United States, a "fair use" exception when a person is accused of copyright infringement should be outlined within the revamped Australian Copyright Act. Under this provision, the fair use of a copyright material would not constitute infringement, with an incomplete list of fairness factors -- including the purpose of the use, nature of the material, amount of the material used, and the use's effect on the material's value -- to be included in the clause.

Research for the purposes of study, education, news reporting, review, criticism, satire, parody, quotation, non-commercial private use, professional advice, incidental or technical use, library or archive, and access for people with a disability would be exempted from prosecution for copyright infringement, for instance.

The technology sector would in particular benefit from the addition of the non-commercial private use and technical use exemptions, as they would cover data caches, cloud computing, digital recording, and transferring of content.

The ALRC said that if this exemption is not inserted into the legislation, then the current fair dealing clauses should be consolidated and expanded to include it.

Brandis, however, has historically taken the perspective of copyright holders to the detriment of all others.

"Without strong, robust copyright laws, they are at risk of being cheated of the fair compensation for their creativity which is their due, and the Australian government will continue to protect them," Brandis said in December 2013.

"I want to reaffirm the government's commitment to the content industries. It is the government's strong view that the fundamental principles of intellectual property law, which protect the rights of content creators, have not changed merely because of the emergence of new media and new platforms."

Brandis also countered that the core principles of intellectual property rights had not changed despite technological advances.

"In this changing digital world, the government's response to the ALRC report will be informed by the view that the rights of content owners and content creators ought not to be lessened and that they are entitled to continue to benefit from their intellectual property," he said at the time.

Upon the eventual tabling of the report, ALRC Commissioner Jill McKeough warned that the absence of such provisions would hinder the progress of Australia's digital economy.

"Fair use is a flexible exception that can be applied to new technologies and services, which is crucial in the digital economy," she said in a statement in February last year.

"Fair use can facilitate the public interest in accessing material, encourage new productive uses, and stimulate competition and innovation. But fair use also protects the interests of writers, musicians, film-makers, publishers, and other rights holders."

At the same time, Brandis again affirmed his partiality toward content owners, claiming that the recommendation to implement a fair use exception was "a controversial proposal" and would weaken the rights of copyright owners.

"In considering the recommendations, we will be particularly concerned to ensure and we will approach the consideration of the report with the view that no prejudice be caused to the interests of rights holders and creators," he said in February 2014.

"Australia's creative industries are not only a vital part of our culture; they are a thriving sector of our economy. Just like any other workers in our economy, they are entitled to the fruit of their efforts."

Copyright issues have become a consistent issue permeating Australian law and politics, with both houses of parliament passing the piracy site-blocking Bill in mid June. The new Copyright Amendment (Online Infringement) Act 2015 will allow rights holders to obtain a court order block foreign websites that are deemed to contain copyright-infringing material or facilitate user access to copyright-infringement material, such as peer-to-peer torrenting websites including The Pirate Bay.

The government did not order a cost-benefit analysis or detail who would bear the costs of implementing the scheme prior to passing this law, however.

A three-strikes policy for Australians who are caught downloading copyrighted material has also been released in the form of a draft code (PDF) by internet service providers (ISPs) and rights holders, which were asked to collaborate on the code by Brandis and Communications Minister Malcolm Turnbull late last year.

In the judiciary, the Australian Federal Court in April ordered ISPs iiNet, Dodo, Internode, Adam, Amnet, and Wideband to disclose the customer details associated with 4,726 IP addresses that had allegedly breached the copyright of Dallas Buyers Club by downloading infringing copies of the film of the same name.

However, the government released a report last month revealing that users who download copyright-infringing content in addition to consuming paid content actually spend more than those who only consume non-infringing content.

The cost-benefit analysis on the ALRC's recommendations into the Privacy Act is expected to be completed by the end of this year.

Editorial standards