Australia to reform copyright laws in face of digital and COVID-19 world

The changes include a new fair dealing exception that allows cultural and educational institutions, governments, and other persons engaged in public interest or personal research to quote copyright material.
Written by Campbell Kwan, Contributor

The Australian government has announced it will make reforms to the nation's copyright laws in a bid to better support the needs of Australians in an increasingly digital environment.

The decision comes after two years of industry consultation and is the government's response to copyright recommendations made by the Productivity Commission four years ago. 

"Australia's copyright system underpins our creative economy and these reforms provide clear and reasonable public interest access to copyright materials, while maintaining the incentives and protections for content creators," said Minister for Communications, Cyber Safety and the Arts Paul Fletcher.

"The need for change has been further highlighted during COVID-19, with schools, universities, cultural institutions, and governments moving more services online." 

The proposed copyright reforms are focused on five main measures: Introducing a limited liability scheme for use of orphan works; a new fair dealing exception for non-commercial quotation; amendments to library and archives exceptions; amendments to education exceptions; and streamlining the government's statutory licensing scheme.

The new limited liability scheme for use of orphan works -- copyright materials that do not have an identifiable copyright owner -- would allow the use of orphan works where a "reasonably diligent search" for the copyright owner has been undertaken so long as the work is clearly attributed.

According to the Department of Infrastructure, Transport, Regional Development and Communications, the new scheme would have the dual benefit of opening up orphaned copyright material to be used in modern creative endeavours, as well as provide public institutions with greater access to a larger collection of works. 

The introduction of an orphan works scheme is based on recommendations made by the Productivity Commission, which had raised concerns about how Australia's current copyright laws hurt consumers and are skewed in favour of rights owners due to the extensive duration of copyright protections. 

"Evidence (and logic) suggests copyright protection lasts far longer than is needed," the commission had written in its recommendations. 

To supplement the orphan works scheme, the Australian government said the cultural, educational, and broadcasting sectors and creative industries should develop guidelines around what is deemed as conducting "diligent searches".
The Australian government has also proposed a new fair dealing exception, whereby copyright material could be quoted for non-commercial purposes, or if the use is of immaterial commercial value to the product or service in which it is used. The new exception would also extend to use by cultural and educational institutions, governments, and other persons engaged in public interest or personal research.

This does not follow the Productivity Commission's recommendation, which had pushed for current "fair dealing" exceptions to be replaced by a broader "fair use" exception. 

The commission had labelled the current fair dealing exception as being unsuitable in the digital world due to being "too narrow and prescriptive".

The government has also proposed to streamline the government statutory licensing scheme by simplifying the method for determining what fees are paid to collecting societies and how this is paid; and providing a new exception that allows government to use correspondence and other material sent to it, even if the use is for non-commercial purposes.

"The reforms will allow the reasonable and necessary use of copyright materials online while also removing administrative burden, meaning these organisations can continue to deliver their services online," Fletcher said.  

Finally, the amendments to library and archive exceptions and education exceptions would see materials held in public and cultural institutions available online for browsing. The amendments would also remove limitations around the use of copyright material for classroom teaching in school, TAFE, or university premises that is conducted outside of these premises.

The Australian government expects to release draft legislation for public consultation later this year.

Late last year, the government said it was also separately working on copyright enforcement reforms in response to recommendations that arose from the Australian Competition and Consumer Commission's Digital Platforms Inquiry.

Specifically, the government said it does not support pursuing a mandatory take-down code managed by the Australian Communications and Media Authority (ACMA) and is currently consulting with copyright stakeholders, digital platforms, and consumer groups to determine how best to reduce the availability of infringing material on digital platforms.

"Australia's copyright system is critically important to our economy and our creative industries ... enforcing copyright against digital platforms can be challenging," the government said.

"The government does not support pursuing a mandatory take-down code managed by the ACMA, noting the concerns of both major copyright owners and users, and the potential unintended effects of a code across a diverse copyright market. 

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