[LINK] Copyright Imbalances to Remain

Roger Clarke Roger.Clarke at xamax.com.au
Fri Feb 14 08:15:49 AEDT 2014

[Corporate welfare wins out over public need, again.]

Brandis likely to knock back relaxed copyright rules
John Hilvert, Allie Coyne
Feb 13, 2014 4:48 PM (15 hours ago)

ALRC calls for flexibility for software backups, text mining and caching.

Attorney-General Senator George Brandis has signalled a knock-back of 
a key recommendation for a more flexible 'fair use' copyright regime 
made in today's release of the final ALRC report into copyright, 
calling it "controversial". 

The Australian Law Reform Commission's report into Copyright and the 
Digital Economy, tabled today, was first delivered into the hands of 
Brandis in November last year.

It is the result of the ALRC's 18-month inquiry into copyright and is 
an attempt to correct outdated legislation with respect to the online 

It is particularly focused on online piracy and fair use, and was 
ordered by the previous Government following a landmark online 
copyright lawsuit between ISP iiNet and a number of Hollywood-backed 
studios. The ALRC terms of reference required it not to broach the 
role of ISPs in copyright infringement.

Currently, legal exceptions to copyright are dealt with via a more 
confined "fair dealing" approach - where exceptions are 
technology-specific and complex to apply.

The ALRC report made 30 recommendations for reform - including that a 
fair use exception to Australian copyright law be introduced and 
applied to new technologies and new commercial and consumer practices.

"Fair use will promote innovation and enable a market-based response 
to the demands of the digital age," the report recommended.

The ALRC said incidental or technical uses - such as caching and 
indexing - were essential to the operation of the internet and other 
technologies that facilitate lawful access to copyright material, 
especially for data and text mining.

But it found current exceptions in the Copyright Act were uncertain 
and did not provide adequate protection for such uses, and 
recommended they be repealed. The authors recommended such uses be 
considered under the fair use exception.

Similarly, the report argues that the fair use exception should also 
be applied in determining whether data and text mining constitute 
copyright infringement.

The report also considered exceptions for backing up copyright 
material, and found the use of legally-acquired copyright material 
for the purpose of back-up and data recovery would often be fair use, 
and should be considered under the fair use exception.

It said there may also be a case for repealing or amending the 
existing exceptions for computer programs, if fair use is enacted, 
but further consultation may need to be conducted.

Brandis backs content creators

Responding to the recommendations, Brandis said the government held 
the view that copyright should protect the rights of content 
creators, and not changed merely because of the emergence of new 
media technology or new platforms.

The principles did not change with the invention of the internet, he said.

Brandis said the rights of content owners and content creators ought 
not to be lessened and they should continue to benefit from their 
intellectual property.

However, he said the Government was yet to fully consider the 
report's recommendations.

Industry reacts

Consumer lobby group Choice said the findings of the report were 
obvious and outlined that Australian copyright law was broken.

Choice CEO Alan Kirkland said the Australian Copyright Law was 
legislation that was designed to be broken by consumers.

"Despite being updated in 2006, our current copyright law fails to 
even address basic technologies like DVDs, let alone emerging areas 
such as cloud computing," he said in a statement.

"If we as a nation are serious about allowing our consumers to 
benefit from the latest technologies, and allowing our businesses to 
fully engage with the global and increasingly digital economy, then 
we need fair use."

Digital rights advocacy group Electronic Frontiers Australia called 
on the Government to introduction the fair use recommendation into 
copyright law.

"Australia's current Copyright Act is no longer fit for purpose in an 
environment of increasingly rapid innovations in technology and 
service delivery," the EFA said in a recent statement.

"The current law is outdated and its inherent inflexibility casts 
uncertainty on the legitimacy of basic internet functions like 
caching and searching, cloud computing, mash-ups and remixes, data 
mining and the personal use of content, particularly within the 
social media context."

EFA chair Sean Rintel said the introduction of a fair use exception 
was long overdue, and would enable greater innovation and creativity 
while removing a number of significant impediments to the development 
of Australia's cloud computing industry.

Roger Clarke                                 http://www.rogerclarke.com/
Xamax Consultancy Pty Ltd      78 Sidaway St, Chapman ACT 2611 AUSTRALIA
Tel: +61 2 6288 6916                        http://about.me/roger.clarke
mailto:Roger.Clarke at xamax.com.au                http://www.xamax.com.au/

Visiting Professor in the Faculty of Law            University of N.S.W.
Visiting Professor in Computer Science    Australian National University

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