Australian government seeks copyright fair use feedback

The Australian government is continuing to bring its copyright laws into line with technology advancements, seeking feedback on whether there is 'general support' on flexible exceptions such as fair use.

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The Australian government has launched a new consultation paper on its ongoing Copyright Act modernisation regime, this time seeking feedback on implementing a fair use provision.

The Copyright modernisation consultation paper [PDF], published on Monday, lays out questions on flexible exceptions, contracting out of copyright exceptions, and access to orphan works.

"By using digital technology, we can now create, distribute, and consume content faster and more easily than ever before. Our policies and laws need to keep up with these changes and continue to reflect the interests of copyright creators, users, and distributors," the Department of Communications said.

In addition to the current fair dealing regime -- which allows access to copyright content for criticism or review, parody or satire, reporting news, research or study, giving professional advice, and disability access -- the government is considering adding the purposes of quotation; non-commercial private use; incidental or technical use; text and data mining; library and archive use; certain educational uses; and certain government uses that are of a "public interest nature".

According to the government, it could either insert a fair use copyright exception, or add these uses to the fair dealing section. The former would require amendments for "an open-ended fair use copyright exception" using the fairness factors.

For the latter option, the Copyright Act could be amended so the communications minister is able to amend and remove fair dealings exceptions, the department explained.

"The minister would need to consult on proposed exceptions, have regard to consultations when making the exceptions, and regularly review them. These exceptions would be disallowable," the consultation paper says.

On the issue of contracting out of copyright exceptions, the paper then discusses whether to make this unenforceable for exceptions including "libraries and archives wishing to supply documents to their users; music consumers wanting to transfer legally acquired music to other devices for private and domestic use; universities wishing to use content from journals in course packs or use online video content for uses other than 'personal use'; consumers of software seeking to make back-up copies".

The department is accepting submissions on all issues until June 4.

The consultation paper follows the Australian government in August finally tabling its response to the Productivity Commission's report into intellectual property, but not lending its full support to the recommendations on circumventing geoblocking technology or implementing a fair use exception for copyright infringement.

However, the government supported "in principle" the recommendation that it expand the safe harbour scheme to cover all providers of online services, including cloud computing services, search engines, and online bulletin boards, rather than just ISPs.

Since then, the intellectual property chapter of the Trans-Pacific Partnership with its 11 remaining signatories (TPP 11) was revealed to outline safe harbour and fair use regimes.

Overall, the chapter encourages balancing copyright protection with innovation and the "diffusion of information, knowledge, technology, culture, and the arts", and describes limited exceptions such as fair use.

"Each party shall endeavour to achieve an appropriate balance in its copyright and related rights system, among other things by means of limitations or exceptions ... including those for the digital environment, giving due consideration to legitimate purposes such as, but not limited to: Criticism; comment; news reporting; teaching, scholarship, research, and other similar purposes; and facilitating access to published works for persons who are blind, visually impaired, or otherwise print disabled," Article 18.66 states.

The TPP is slated to take effect in Australia before the end of 2018.

The Australian government passed digital fair dealing for the Copyright Act last year, with the Copyright Amendment (Disability Access and Other Measures) Bill 2017, passed in June, making provisions for access to copyright material by those with a disability, along with protecting educational facilities, key cultural institutions, libraries, and archives from copyright infringement.

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