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.
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:
The proposed limited liability scheme will:
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 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.
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:
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:
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.