Parliamentary Library Lecture 7 February 2013 Professor Jill McKeough Australian Law Reform Commission

Copyright in the Digital Economy Review foreshadowed by AG McLelland in February 2011 Announced October 2012 Commenced May 2012 Terms of Reference 30 June 2012 Discussion paper 31 May 2013 Final Report due 30 November 2013

Copyright and the Digital Economy – the adequacy and appropriateness of exceptions and statutory licences and to ensure that Australia’s economic and cultural development is supported by these laws – the importance of the digital economy and the opportunities for innovation leading to national economic and cultural development created by the emergence of new digital technologies

What is copyright for? Terms of reference say have regard to the role of copyright in: ‘providing an incentive to create and disseminate original copyright material(s)’ ‘The general interest of Australians to access, use and interact with content in the advancement of education, research and culture’ ‘The importance of the digital economy...’

What the Inquiry is not doing: ISPs : the architectural framework of the digital world, underpins the creation of new commercial entities and practices TPMs: technological protection measures Other international discussions (EG: use of copyright material for persons with print disabilities)

We are not reinventing the wheel (or the internet) Have to take into account other reviews (Convergence, Copyright Law Review Committee, reviews of parts of the copyright act (eg 2006 reforms) Much activity overseas: International developments concerning copyright law and reviews continue to emerge as the ALRC Inquiry progresses. Recent news includes the UK Government final response to the Hargreaves Report: The announcement of a review and update of EU copyright law: presents-new-priorities-for-the-eu-digital-agenda html. presents-new-priorities-for-the-eu-digital-agenda html A review of orphan works and copyright is taking place in the US: and WIPO is using YouTube to discuss intellectual property rights Irish Review of copyright law due to report in March 2013:

Copyright is very messy Too complex and need expensive advice to know how it works The Act is very unwieldy – larger than tax or corporations legislation ‘Exceptions’ to rights are all over the place It has been suggested that much complexity results from reform decisions being reached in an ad hoc manner, in relation to specific exceptions, rather than being underpinned by any widely accepted principles.

Has the role of copyright changed? ‘The erroneous belief that copyright laws are the engine of culture and creativity (in the popular sense) is based on a misperception of the role of copyright in the marketplace’. W Patry How to Fix Copyright Law (2011), 29 OR ‘copyright is a property right and not an instrument of regulation’. (Comments on UK Hargreaves copyright reform report).

What does a successful digital economy look like? ALRC is hearing about this in consultations A DE does not stand still, characterised by constant innovation Has the right regulatory environment (copyright law included) Allows use of technology without too many barriers Fair use, transformative use, user-generated content Has good networking, allows business and individual to ‘flourish’ on-line

The ‘political economy’ of copyright Has changed... Users now organise themselves and express their views (ACTA; SOPA;PIPA...) It is recognised that transformative use is one form of innovation Want to avoid situations that will slow down/prevent innovation. At the same time, don’t want people to ‘pinch’ people’s creative efforts

Commercial /non-commercial Copyright Council Expert Group has recommended an exception for non-commercial, transformative use of copyright works What is ‘non-commercial’? Who knows what will become the next big thing? Should a ‘mash-up exception’ be confined to non- commercial use? Do we need any such exception at all?

Moral rights Last year the Fed Magistrate’s Court held that a mashup involving a few words mixed into a song was prejudicial to the artist’s moral right of integrity. It was not necessary for the artist to show any actual damage. The artist was awarded $10,000 damages for infringement of his moral rights. Perez v Fernandez [2012] FMCA 2 (10 Feb 2012) It is also important to consider issues relating to Indigenous culture and cultural practices in the context of digitisation of individual, family and community material.

55 Questions asked Issues paper released 20 August 2012 Submissions due mid November One question is about whether the correct principles for reform have been identified

Issues identified include: Caching and indexing, cloud computing, private copying, social media use, transformative use, orphan works, data and text mining, crown use, retransmission, statutory licences, educational use, fair dealing and other free-use exceptions, contracting out, competition issues, cultural policy, regulatory policy, technology neutrality... A number of submissions are concerned that piracy, enforcement and internet service provider liability are not within the TORs

And the big one.... Fair use exception Should further exception(s) recognise ‘fair use’? Australia has a closed list of permitted purposes for ‘fair dealing’ with copyright material How would this be understood in the Australian context? Section 200AB – introduced in 2006 to allow any use of a work that is made ‘for the purpose of maintaining or operating the library or archives’ – Also to assist in ‘giving educational instruction’ – BUT: ‘The provision has not been used to a great extent because it is too limited, and cultural institutions are unsure about how to use s 200AB in accordance with their institutional risk management, relationship management and other policies’.

ALRC processes Consultations to identify the issues - followed by the Issues Paper Further consultations to find out the ‘headlines’ in submissions for further investigation Reference groups and roundtables with industry/academic/stakeholder groups Discussion Paper (May/June) Further consultations to discuss proposals in DP

Criticism of ALRC process Advisory Committee is ‘biased’ (We disagree) ‘Not one person with a commercial background or understanding of the content and creative industries’ (Some people very surprised to hear that) Reference groups of relevant stakeholders being established Anti-commercial bias/conflict of interest/misleading content (we disagree)

Overview of submissions More than 280 submissions received Some are very polarised Many are very constructive and give us good information Overall agreement with the policy parameters – Everyone agrees that copyright is an incentive to innovation and creativity – authorship is important – International obligations must be adhered to

Commentary on the submissions Twitter Blogs Tech journalists Some financial press A blog comment: ‘Here is a submission that's been dusted off from the 1996 pile. It's an exquisite example of early internet thinking. It toes a hard conservative line. The only thing good about it is its consistency. It bangs an old drum and keeps banging it remorselessly’.

Range of submissions Submissions include: Academics (individuals and groups) Creators and organisations (authors, directors, photographers and others) Education sector GLAM (galleries, libraries, archives and museums) Government authorities, (ACCC; ACMA; IP Australia; Standards Australia and others) Media/broadcasting/other content organisations and industry bodies Music organisations On-line service providers Publishers and publisher organisations Rights management organisations

What will change? Copyright law needs to respond to changes in technology, consumer demand and markets. Copyright also needs to have a degree of predictability so as to ensure sufficient certainty as to the existence of rights and the permissible use of copyright materials, leading to minimal transaction costs for owners of users and avoiding uncertainty and litigation.