Government adds fair use, safe harbour provisions to Copyright Act

The government will implement fair use and safe harbour provisions in its Copyright Act amendments, with exceptions crated for educational and cultural institutions, archives, libraries, and disabled persons.
Written by Corinne Reichert, Contributor

The Australian government has published its proposed changes to the Copyright Act to implement a fair use provision as part of amendments aimed at adapting to the digital world, with the exposure draft providing exceptions for educational and cultural institutions, as well as for those with disabilities.

The amendments to the Copyright Act 1968 are designed to ensure that libraries, archives, educational facilities, cultural institutions, and the disability sector have "reasonable access" to copyrighted content, with usage of a copyright material not constituting infringement.

Under the proposed amendments, Section 113E covers fair dealing for purpose of access by persons with a disability; s113G-K covers public libraries, parliamentary libraries, and public archives for preservation, research, and administration; s113L-M covers "key cultural institutions" for the purpose of preservation; and s113N-U covers educational institutions for copying and communicating works and broadcasts on the condition of an agreed upon remuneration.

"The proposed amendments for disability access consolidate the various existing exceptions and limitations in the Act that help to provide access to copyright material for certain authorised organisations and individuals," the government explained in its Guiding Questions document.

"The draft legislation also proposes two separate stand-alone exceptions, one for institutions assisting persons with a disability and one for use by individuals (fair dealing)...

"The proposed preservation exceptions apply to public libraries and archives, parliamentary libraries, and prescribed key cultural institutions. It is envisaged that this will generally include a library or archives that forms part of an educational institution, but that there may be library or archival material held by an educational institution (or another institution such as a museum) that is not accessible to the public either directly or through interlibrary loans.

"This means that, potentially, the exception would not apply to library or archival material held by an educational (or other type of) institution that is not accessible by the public."

The amendments have also acceded to Article 18.81 of the recently signed Trans Pacific Partnership by implementing broader "safe harbour" provisions to cover online copyright access.

"The proposed amendments expand the current 'safe harbour' provisions in the Act to cover a broader range of entities, including educational institutions and other online services (such as online search engines, bulletin boards and cloud storage services)," the Guiding Questions document says.

According to the Department of Communications, the draft amendments simplify the legislation by streamlining licensing agreements for educational statutory licence provisions for the copying and communication of copyrighted content; simplifying regulations for archives, libraries and cultural facilities to make "preservation copies" of copyrighted material; providing more access to unpublished works; and extending safe harbour provisions to protect search engines, universities, and libraries against online copyright infringement mechanisms.

Electronic Frontiers Australia (EFA) welcomed the safe harbour provisions, but said the amendments are "insufficient", as they are not broad enough.

"EFA is, however, disappointed that the government continues to avoid meaningful progress on the introduction of a broad flexible fair use provision, as was recommended by the Australian Law Reform Commission in their November 2013 report on Copyright and the Digital Economy," the EFA said in a statement on Thursday morning.

"A broad flexible fair use exception is a well-overdue reform that is critical to ensuring Australia is able to benefit fully from digital innovation by introducing much-needed flexibility within the law that will allow new technologies and services to be developed and brought to market in Australia."

Without such an exception, according to EFA chair David Cake, the law will remain outdated, especially in comparison to similar laws in other countries.

"Australia's Copyright Act is outdated and no longer fit for purpose in the digital age. A broad flexible fair use exception is central to copyright law in the United States, Singapore, Israel, and other nations that are leading the world in digital innovation. If the government is serious about digital innovation, they need to move to implement fair use ... without further delay."

The former Labor government had 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.

This was followed soon after by the Australian Law Reform Commission (ALRC) submitting a report to the government on the matter. However, in December 2013, Australian Attorney-General George 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 had 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 Copyright Act.

Research for the purposes of news reporting, review, criticism, satire, parody, quotation, non-commercial private use, professional advice, and incidental or technical use were also recommended by the ALRC to be exempted from prosecution for copyright infringement, but were not included in the exposure draft.

The technology sector would in particular have benefited 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 has previously said that if this exemption were not inserted into the legislation, then the current fair dealing clauses should be consolidated and expanded to include it.

In August, the Attorney-General's Department commissioned a cost-benefit analysis into the amendments in order to examine the cost effects that fair use would impose on copyright holders along with copyright user groups.

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."

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 Attorney-General George Brandis and Communications Minister cum Prime 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 (DBC) by downloading infringing copies of the film of the same name -- but due to DBC continually chasing excessive damages, the court has since dismissed the proceedings unless DBC makes an application by February.

The cost-benefit analysis on the ALRC's recommendations into the Privacy Act was expected to be completed by the end of this year, but has yet to be published.

The government is accepting submissions on its draft amendments to the Copyright Act until February 12, 2016, at 5pm AEDT.

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