[LINK] Australian Internet Copyright Reform Paper

[Tom Worthington]

The Australian Digital Alliance has released "Internet Intermediaries
and Copyright: An Australian Agenda for Reform" by Kimberlee Weatherall:
http://www.digital.org.au/submission/documents/Weatherall-InternetIntermediariesandCopyright.pdf

This is a comprehensive 63 page study. But it is odd, given the subject
matter, the report has no copyright notice. Here is an extract of the
executive summary:

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"Executive Summary

Digital Economy: the global network of economic and social activities
that are enabled by platforms such as the Internet, mobile and sensor
networks.1

Australia aims to be a place where innovation in the Digital Economy
happens.2 Achieving this goal is essential to Australia"s future
economic growth, productivity, and social well-being.3 It will require
not just great digital infrastructure, and a population with the
necessary skills and entrepreneurial spirit, but a legal environment
conducive to investment in the technologies, products, and services that
make up the Digital Economy.4

Copyright law is an important part of this legal framework. The goal of
copyright law is to encourage the creation of artistic, intellectual,
and scientific content, from books and datasets to movies, music, video
games, software, and art, by granting to creators exclusive rights to
exploit their creations. The creation of new content is an important
part of a successful Digital Economy. But, as has been widely
recognised, too much copyright protection (or too much intellectual
property generally) "may discourage people from innovating because the
pathways to discovery are blocked by other intellectual property owners".5

A critical set of actors in the Digital Economy who can be affected by
over-broad copyright are the Internet Intermediaries. These are the
companies that provide the basic infrastructure of the Internet, and
that build and create the services and platforms of the Digital Economy.
They include Internet Access Providers (IAPs), web hosts, the providers
of online platforms for the creation and exchange of content (such as
YouTube, WordPress, and Facebook) – and others perhaps not yet
conceived. They are all "intermediaries" in the sense that they stand
between customers or end-users, and originators of content or other
material. They are not only direct participants in the Digital Economy,
but enablers – they build the platforms and infrastructure that can
enable other companies to innovate and to take advantages of the
efficiencies of the online environment.

If Australia is to achieve its overall innovation goals, and fully
realise the potential economic and social benefits of the National
Broadband Network (NBN), it will need to ensure that its copyright law
appropriately enables Internet Intermediaries to operate and to invest
in creating Australia"s Digital Economy. It is difficult to determine in
the abstract where the proper accommodation of competing interests in
copyright lies. One guide is a comparison with similar countries –
Australia"s competitors in the global Digital Economy.6 If Australia"s
laws create a less conducive environment for a Digital Economy than the
law of Australia"s competitors, this will put Australia at a
disadvantage in attracting and retaining innovative digital companies.

Where Australia currently stands

Measured against other jurisdictions, Australia"s copyright law is both
less coherent and less amenable to innovation in the Digital Economy.
The present legal situation can be understood at a broad level using a
basic "traffic light" metaphor: where RED means an activity involves a
high risk of copyright infringement, ORANGE means the legal situation is
unclear, and GREEN means a low or non-existent risk of copyright
infringement (perhaps subject to the company fulfilling certain
conditions, such as taking infringing material down on receiving notice).

Table 1: Summary Table: Risk of Copyright Infringement Activity

... Table omitted ...

The legal reality in Australia is that fifteen years after the Altavista
search engine was launched, a search engine can still not operate fully
from Australia without facing a risk of copyright infringement. Five or
six years after the launch of services like Facebook, YouTube and the
WordPress blogging platform, the same applies to these Digital Economy
companies and services. Current Australian law also creates an uneven
playing field: carriage service providers face less overall legal risk
than other Internet Intermediaries, even where they perform the same
practical function.

Table 1 does not, however, give a full picture of the impact of
copyright on innovation, for two reasons. First, it focuses on online
activities that we already know about. Innovation is, by definition,
doing new things. Doing what is now known – following on from existing,
often foreign innovations – is not enough: Australia needs to generate
new ideas that can take on the world. Creating the environment in which
people can come up with these new ideas, and pursue them through to
commercialisation, depends in part on ensuring the law provides some
room to experiment.

Australian copyright law provides no such room. By contrast, US law
provides two important flexibilities for Internet Intermediaries: the
fair use exception, which allows for non- infringement based on a
balancing of factors (like the impact of an activity on the market), and
the ‘Sony doctrine" – the rule that a person who provides services or
technology that has "substantial non-infringing uses" will generally not
be held liable for its customers" infringements.
Solutions

To provide an appropriate legal environment to enable greater innovation
in the Australian Digital Economy, two critical changes are needed.
Extend the Safe Harbours

First, Australia should extend its copyright Safe Harbours to benefit
all online service providers.

Copyright and Internet Intermediaries: An Australian Agenda for Reform
indeterminate legal risk. Extending the Safe Harbours would not,
however, be sufficient to create a favourable environment for
innovation, because entrepreneurs wanting to introduce new,
unanticipated services and products would have little room to move.
Introduce a Flexible Exception into Copyright

Second, Australia should introduce a flexible exception into copyright,
in order to promote innovation, create room for experimentation and move
from a "permission to innovate" culture to one conducive to taking risks
and trying new things, at least where the impact on copyright owners"
economic interests is small. This could be done by:

    1. Introducing an exception for fair dealing for the purpose of
"transformative use" (or some variation); or
    2. Introducing an open-ended fair dealing exception modelled on fair
use as found in US copyright law; or
    3. Introducing a new s 200AB-style semi-flexible exception (or
expanding the operation of the existing s 200AB): for example,
specifying Internet Intermediaries as another kind of entity that gets
the benefits of being allowed to do activities provided they do not
contravene the "three step test" in international law.

Of these, using s 200AB is the least desirable option due to its
complexity. Options 1 and 2 are similar. Both would help ensure that
Australian law properly enables the key technical processes that
underpin the operation of the Internet and common online services, as
well as ensuring that Australian law provides room for appropriate
innovation to spur a thriving Digital Economy.

If Australia chooses not to introduce a new flexible exception, at the
very least, Australia should introduce one or more new specific
exceptions to address problems identified in this Policy Paper to allow
known activities that do not unjustifiably harm copyright owners. To
address the gaps identified in this Policy Paper, specific exceptions
would be needed to allow at least:

    1. Caching, including proxy and system-level caching;
    2. Web Hosting (including Cloud Computing);
    3. Hosting a User-Created Content Platform (with an exception to
allow individuals to make user-generated content); and
    4. Operating a Search Engine.

Some reform to address these activities, currently not allowed under
Australian law, would be better than nothing, to at least enable local
versions of known services online. However this would do little to
encourage future innovation in the Australian Digital Economy. ..."

From: Internet Intermediaries and Copyright: An Australian Agenda for
Reform, Kimberlee Weatherall, Australian Digital Alliance, April 2011
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More in my blog at:
<http://blog.tomw.net.au/2011/04/copyright-reform-for-internet.html>.


-- 
Tom Worthington FACS CP HLM, TomW Communications Pty Ltd. t: 0419496150
PO Box 13, Belconnen ACT 2617, Australia  http://www.tomw.net.au
Adjunct Senior Lecturer, School of Computer Science, The
Australian National University http://cs.anu.edu.au/courses/COMP7310/
Visiting Scientist, CSIRO ICT Centre: http://bit.ly/csiro_ict_canberra