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Major changes to copyright laws announced

ACS staff, Information Age

13/06/2006 13:28:07

Lawyers Minter Ellison offer this overview of the reforms:

An exposure draft of the legislation required to implement the reforms is expected shortly, and interested people will be given an opportunity to consult with the Government on the way the reforms should be introduced.

The Attorney-General, on announcing the reforms, said that the intended changes would make Australia's copyright laws fairer for consumers and tougher on copyright pirates. The changes fall into two broad categories:

• new provisions to enable Australian consumers and institutional copyright users - such as libraries, museums and schools - to make additional reasonable uses of copyright materials without payment

• new provisions and initiatives to strengthen Australia's copyright laws and make it easier for copyright owners to enforce their rights. Comment The Government's proposals contain important changes for both copyright owners and users. As we foreshadowed in a previous News Alert, the Government is committed to introducing format shifting and time shifting exceptions for Australian consumers.

There are also important new exceptions for institutional users, and clarification of the permitted uses of copyright materials on the Internet.

However, despite these changes, copyright owners should be pleased by the very significant strengthening of the enforcement regime and other anti-piracy initiatives, as well as the removal of the "cap" on the amounts payable for the broadcast of sound recordings.

Of course, the devil will be in the detail. The Bill containing the amendments is likely to be introduced in the Spring sittings of Parliament, with an exposure draft available for public comment prior to the Bill's introduction.

Until the detail is available, the full effect of these proposals will be unclear.

Reforms to benefit consumers and institutional users

It is now clear that a United States-style "fair use" provision will not be introduced in Australia. Instead, the Government will introduce amendments to the existing fair dealing scheme.

The most significant reform for consumers is the introduction of a new fair dealing exception for private use:

• Consumers will be permitted to make time shift recordings of radio and television programs to allow the program to be viewed or listened to once at a later time.

• Format shifting for private use (eg, making a copy of a CD to play on a MP3 player) will be permitted for audio works and newspapers (eg, making a scanned copy of a newspaper article to store on a PC).

• The Government will consider whether to expand the private format shifting exception to include films on DVD after a review in two years.

A new "flexible dealings exception" will also be introduced to allow for non-commercial uses:

• by libraries, archives and museums (eg including an extract of a historical document in a brochure) • by educational institutions (eg copying a VHS tape to a DVD) • for people with disabilities (eg, converting a book to a format enabling it to be read aloud).

These new exceptions for institutional users will not apply where there is an existing exception for that activity in the Copyright Act.

Initiatives from the three-year review of the Digital Agenda Act

The Digital Agenda Act was introduced to ensure copyright laws could deal appropriately with the challenges brought by the digital environment. The recently-announced reforms will clarify the operation of some Digital Agenda Act provisions. Importantly, it will be made clear that Internet browsing is not covered by the right of communication to the public.

In addition, the reforms will clarify the status of temporary copies placed into a cache, and clarify that exceptions such as the temporary copies exception are not displaced by the existence of statutory licences (eg, a licence that allows teachers to make copies of works for classroom use).

An amendment will also be introduced to enable cultural institutions to preserve and provide public access to their collections without infringing copyright.

The Government will be publishing a full response to its three-year review of the Digital Agenda Act, which was not available at the time of writing. Reforms to benefit copyright owners

The Government's announcement suggests there will be very significant changes to the existing copyright enforcement regime. These include:

• the ability of police to enforce on-the-spot fines for copyright infringement, and to access and recover profits made by copyright pirates • provisions will be introduced making it easier for copyright owners to prove their ownership of films (this can often be a technical difficulty in bringing copyright enforcement actions in courts) • courts will be given powers to award larger damages payments and other remedies for Internet piracy • it will be a criminal offence to dishonestly access a subscription television broadcast, or to use the broadcast for a commercial purpose where the appropriate subscription has not been paid.

Other anti-piracy initiatives announced include:

• the Australian Institute of Criminology has been commissioned to research the nature and extent of piracy and counterfeiting in Australia • the Government will ensure information about copyright and intellectual property is published on all relevant Government Web sites • the Government will promote greater cooperation between law enforcement agencies on piracy issues • consideration will be given to establishing an independent body to specialise in investigating Internet piracy • it will be made easier for the Australian Customs Service to seize an imported article containing a false trade description, whether or not the article is the subject of a notice of objection. Other reforms

The Government also announced that the Copyright Act will be amended to:

• expand the jurisdiction of the Copyright Tribunal; and • remove the cap on the amount which radio stations pay for the playing of sound recordings.