Fifield dismisses Copyright Act amendment recommendation

The government has not considered and does not intend to propose shortening the length of copyright protection as recommended by the Productivity Commission.
Written by Corinne Reichert, Contributor

Communications Minister Senator Mitch Fifield has dismissed "conjecture" on the Australian government adopting recommendations made last month by the Productivity Commission to amend the Copyright Act, including shortening the length of copyright from 70 years after the author's death to just 15 to 20 years after creation.

The changes will not be made because "the Coalition values Australian literature and Australian writers," according to Fifield, who referenced the foreign piracy website-blocking law passed by Parliament last year.

"We have introduced legislation which came into effect last year to address the illegal downloading of content in Australia, and have consulted on further improvements to the Copyright Act to update and simplify the protections for copyright owners that will be introduced at the start of the next term of Parliament," Fifield said in a statement.

"Recently, it has been wrongly claimed that the government is planning to reduce the life of copyright to 15 to 25 years after creation, rather than 70 years after the death of the author as it is currently. This is not something the government has considered, proposed, or intends to do.

"The false claim is based on a finding in a recent draft Productivity Commission Report into Intellectual Property Arrangements."

The Intellectual Property Arrangements: Productivity Commission Draft Report [PDF], published by the commission last month, addressed a number of issues, including finding that the public would derive more benefit from the length of copyright being shortened from 70 years after death to 15 to 20 years after creation; recommending that it make it clear that circumventing geoblocking technology is not an infringement of copyright; recommending that it avoid entering international agreements that ban the circumvention of geoblocks; recommending that the current "fair dealing" exceptions be replaced by a broader "fair use" exception; and finding that making better use of timely and cost-effective access to copyright materials would combat online piracy more effectively than punitive measures.

Among other things, it also recommended that the safe harbour scheme be expanded to cover cloud and streaming services; an open access policy be implemented for publicly funded research; business methods and software be excluded from being patentable; an objects clause be incorporated into the Patents Act; the innovation patent system be abolished; and higher patent fees be explored.

In regards to the Coalition's unceasing efforts to police piracy and uphold the rights of copyright owners, Attorney-General George Brandis and Communications Minister cum Prime Minister Malcolm Turnbull asked internet service providers (ISPs) and rights holders to collaborate on creating a three-strikes policy in late 2014, which was released in the form of a draft code [PDF] last year.

The Communications Alliance and Foxtel last month wrote to the Australian Communications and Media Authority (ACMA) saying, however, that the three-strikes policy should be shelved.

The letter, written by Foxtel director of Corporate Affairs Bruce Meagher and Comms Alliance CEO John Stanton, said ISPs and rights holders have not been able to reach an agreement on cost apportionment.

"While the text of the code was agreed between the parties, negotiations were still under way to finalise an associated commercial agreement to address a range of issues, including cost sharing, underpinning the operation of the CNS [Copyright Notification Scheme]," the letter said.

"It has not proved possible to reach agreement on how to apportion all of the costs for the overall operation of the CNS. This lack of agreement is not due to any shortage of good-faith effort by the parties.

"Efforts to resolve the impasse included the joint commissioning of a comprehensive study by an independent consultant to identify the range of real-world costs that would be incurred."

Stanton wrote on behalf of all ISPs, while Meagher represented the Australasian Performing Right Association (APRA), the Australian Recording Industry Association (ARIA), the Australian Screen Association, Free TV Australia, Music Rights Australia, News Corp Australia, and Village Roadshow Limited.

The letter noted that over the past few months, the copyright infringement battle has moved to the courts instead, where rights holders and ISPs are working cooperatively.

Given both this and the fact that a costs agreement cannot be reached, the letter recommends that the code be shelved and revisited in 12 months.

"In the meantime, ISPs and rights holders are committed to continuing efforts to combat online copyright infringement through education programs and their ongoing commercial undertakings. We hope that recent changes in the market will help reduce the level of infringement," the letter said.

Meagher and Stanton also asked for "some form of reassurance" that the ACMA will not until April 2017 advise the communications minister to force them to create a binding code.

Under the draft code, rights holders were to send reports to ISPs identifying IP addresses that have allegedly infringed on copyright, with the ISPs to then match IP addresses with account holders and send the associated customers infringement notices. Customers can be warned three times over a 12-month period in escalating education notices, warning notices, and final notices, after which the ISP involved must make a user's details obtainable through a Federal Court order.

The regime was originally set to be implemented from September 1, 2015, but had to be pushed back due to stalling negotiations over the costs imposed by instituting the scheme, and whether the 70 ISPs involved will receive any compensation for being required to enforce copyright on behalf of rights holders.

Last month, Stanton also spoke out against the code, saying the government should pause to consider whether piracy is already being solved by streaming services.

"What we're looking at doing is making a joint approach to the minister [for communications] with rights holders to say, 'well, given the focus is on website blocking at the moment, let's put that [three-strikes] draft code into abeyance, and not have the ACMA seek to further examine it for possible registration, and we'll come back in 12 months and see whether it makes sense to try and reinvigorate those commercial discussions'," Stanton, speaking at the CommsDay Summit in April, said.

"So hopefully that will give us at least a good holding position until we see in a year's time whether there really is a problem of scale that needs to be dealt with by a costly and complex scheme."

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