Ben Hamilton, Partner at Hall & Wilcox, with the assistance of Patricia Camelo De Souza, Law Graduate, shares a critical update on the Copyright Act 1968 (Cth) following the Federal Government’s proposed reforms. He looks into the limited liability scheme for use of orphan work, the new fair dealing exception, library and archives exception and the education exceptions.
The Federal Government has proposed significant reforms to the Copyright Act 1968 (Cth), following two years of extensive stakeholder consultation. The reforms will finalise the Government’s response to copyright recommendations in the Productivity Commission’s 2016 Intellectual Property Arrangements Report (2016 Report).
The Hon Paul Fletcher MP, Minister for Communications, Cyber Safety and the Arts announced the proposed reforms on 13 August 2020. The Minister noted that the need for change has been further highlighted during COVID-19, with schools, universities, cultural institutions and governments moving more services online.
The aim is to provide a copyright framework that is fit for the digital age and the proposed copyright access reforms will include five main measures.
Limited Liability Scheme for Use of Orphan Work
Under the current Copyright Act there is no special treatment for so-called ‘orphan works’, being works where the copyright owner cannot be identified. Orphan works are increasingly problematic, especially for libraries and archives – the common repositories of orphan works – as they seek to digitalise, and make available online, their collections.
The 2016 Report recommended that liability for the use of orphan works be limited in circumstances where a user has undertaken a diligent search to locate the relevant rights’ holder.
The proposed reforms will establish a scheme to allow the use of orphan works where:
- a reasonably diligent search has been undertaken, but the copyright owner cannot be identified or located; and
- as far as reasonably possible, the work has been clearly attributed to the author.
The proposed limited liability scheme will:
- encourage relevant sectors and creative industries to develop guidelines around conducting diligent searches;
- remove users’ liability for past use of orphan work, if the copyright owner later comes forward, and users will be permitted to continue to use the work upon reasonable terms as agreed with the copyright owner or as fixed by the Copyright Tribunal; and
- allow the copyright owner to seek an injunction against future use of the orphan work, if the reasonable terms are not met.
New Fair Dealing Exception for Non-Commercial Quotation
The Copyright Act currently allows for copyright materials to be used, without the authorisation of the rights holder if the dealing is for one of the prescribed fair dealing purposes.
In the 2016 Report, the Australian Law Reform Commission (ALRC) recommended that the fair dealing exceptions in the Copyright Act be replaced with a broad and principles-based fair use exception on the basis that the current exceptions for fair dealing are too narrow, too prescriptive and are unduly focused on the type or purpose of use.
The Government’s proposed reforms do not go so far as to recommend removal of the existing fair dealing framework or the introduction of a broad fair use exception, as previously recommended by the ALRC. However, the proposed reforms introduce one new specific fair dealing exception for quoting copyright material, subject to:
- the quotation occurring for non-commercial purposes or if the use is of immaterial commercial value to the product or service in which it is used;
- use only by cultural and educational institutions, governments and other persons engaged in public interest or personal research; and
- the making of the quotation must be compatible with fair practice having regard to standard fairness factors.
Amendment of Library and Archives Exceptions
The reforms propose to simplify and update the library and archives exceptions to apply equally to all copyright materials and to be technologically neutral.
This will mean that materials held in the collections of institutions will be available online for browsing, including through digitisation of physical materials, as long as reasonable steps are taken to ensure that the person accessing the material does so in a way that does not infringe copyright in the material.
Amendment of Education Exceptions
The amendments seek to enable educational institutions to take advantage of contemporary teaching practices and better support remote and online learning, provided reasonable steps are taken to limit wider access to copyright materials than are reasonably necessary.
While details are yet to be provided, the Government has stated that the proposed amendments will:
- remove the current limitations and uncertainties around the use of copyright material in classroom teaching;
- ensure that learning activities which can be undertaken on school, TAFE or university premises can also take place outside the premises, including in online lessons;
- allow educational institutions, libraries and archives to rely on the ‘special cases’ exceptions, if necessary, to cover other reasonable uses of copyright material that will not impact the creator’s commercial market, including in times of regional or national crisis (such as the present COVID-19 pandemic); and
- restore the exception in section 106 of the Copyright Act to allow public schools to rely on the exception to play sound recordings for non-curricular activities such as school concerts.
Streamline the Government Statutory Licensing Regime
The Copyright Act contains two statutory licence schemes that allow educational institutions and governments to use copyright material on payment of a prescribed fee.
Governments are able to use copyright material ‘if the acts are done for the services of the Commonwealth or State’ (referred to as the ‘Crown Use right’). [Rather than negotiate with individual rights holders, the respective schemes allow educational institutions and governments to access copyright material without seeking the agreement of rights holders. The Copyright Tribunal has jurisdiction to hear and settle disputes arising under the operation of the schemes, including determining adequate remuneration.
The proposed amendments seek to better capture the increased reliance on digital materials by federal, state and territory governments and aim to provide a simpler, more efficient and flexible licensing model.
While details are yet to be provided, the Government has stated that the proposed reforms will:
- extend the collective licensing arrangements with declared collecting societies to cover not only government copying but also the communication and performance (display) of copyright material;
- simplify the method of determining fees payable to collecting societies and how these are paid, including removing the requirement for a sampling system (survey) to be used; and
- provide for a new exception permitting use by governments of correspondence and other material sent to government, if the use is for non-commercial purposes.
The Government expects to release the exposure draft later this year, which will provide further details of reforms and an opportunity for stakeholder consultation.
Ben Hamilton has a range of experience in intellectual property, technology, and commercial matters.
He specialises in technology and commercial contracts, branding and product labelling advice, advertising and marketing law, trade mark matters, intellectual property commercialisation, copyright advice, disputes and licensing, and competition and consumer law matters.
Ben has also advised and assisted clients in drafting and negotiating procurement, technology and other commercial contracts, asserting and defending substantial copyright and trade mark infringement claims, implementing a national trade mark certification scheme, drafting agreements relating to the commercialisation of new plant varieties and patented technology.
Ben has been recognised in The Best Lawyers in Australia in Intellectual Property Law every year since 2016.
