Copyright law review paper delves into cloud

Cloud concerns raised by the Optus TV Now Federal Court case are being explored in the ALRC's copyright law consultation paper.
Written by Spandas Lui, Contributor

The Australian Law Reform Commission's (ALRC) newly released Copyright Act review consultation paper has raised concerns that Australian copyright laws might be stunting the country's cloud market, directly making reference to the Optus TV Now court case.

In the paper, "Copyright and the Digital Economy", the ALRC is looking at whether new exceptions to the Copyright Act should be added, since we are well and truly into the digital age.

"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," the ALRC commissioner for the copyright inquiry, professor Jill McKeough, said in a statement. "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."

The dynamic tech sector has thrown a few curve balls at Australia's seemingly outdated copyright laws, including how users of cloud computing can infringe on copyrighted materials.

Launched in 2011, Optus TV Now has since been pulled by Optus after it lost a Federal Court battle with the Australian Football League (AFL), the National Rugby League (NRL) and Telstra. Optus is looking to appeal the case to the High Court of Australia.

Optus TV Now allowed customers to record in the cloud and playback free-to-air TV content on their smartphones with minimum delay. This was perceived by the football bodies as being a copyright infringement, especially due to a multimillion-dollar deal that the AFL had signed with Telstra to broadcast AFL games on the telco's mobile network.

Analysts have considered the court decision to be detrimental to the growth of cloud computing in Australia. It could place a new legal burden on cloud service providers, since it could mean that they are responsible for the data stored on their cloud infrastructure by their customers. This may deter cloud-computing providers from entering the Australian market.

"The Federal Court case in 2012 concerning the Optus TV Now service highlights the potential for new and emerging cloud-computing services to infringe copyright, or enable their customers to infringe copyright," according to the consultation paper.

The ALRC is keen to hear from the public about whether Australia's copyright law is impeding cloud-computing services, and whether changes should be made to accommodate for this burgeoning technology sector.

"Cloud services, such as digital lockers, may also be used to store and share copyright material acquired illegally," the paper said. "New or amended exceptions presumably should not permit such activity."

Whether cloud service providers should qualify for safe harbour schemes, such as the ones available for carriage service providers, is beyond the scope of the review.

Copyright exceptions: caching, social networks and data mining?

The consultation paper also addressed a number of other topics related to copyright and Australia's digital landscape, one of which concerns caching and indexing online content.

There are currently no exceptions granted to internet service providers (ISPs), search engines and other internet "middle men" to cache content, some of which may be copyrighted content, for indexing and operational efficiency.

"Caching improves the internet's performance, allowing search engines to quickly retrieve cached copies on its server, rather than having to repeatedly retrieve copies from remote servers," the paper noted.

But in doing so, search engines may be infringing copyright. There's also the sticky situation when search engines display links to websites that do contain pirated content. Australian copyright laws cannot determine whether companies such as Google are liable, and there is room to broaden exceptions to the Copyright Act to accommodate for caching and indexing content.

The rise of social networks has propagated a culture of sharing copyrighted content with friends. This user-generated content is also not covered under local copyright laws. While exceptions to the Act can be made for user-generated copyright content for non-commercial use, the parameters need to be defined.

Tying into the growth of social networks is the topic of data and text mining. This could be for analytics and research purposes, with data, text and images collected being stored in databases and repositories. For commercial companies, this data can prove to be extremely valuable. Yet, there is currently no specific exception in the Copyright Act for data mining that may involve copyrighted content being copied without permission.

Individuals or organisations interested in making a submission in response to the copyright law review can do so here.

Submissions close on 16 November, and a report is due in 2013.

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