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Tuesday, November 14, 2006


Copyright Proposals Fail Test of Brevity, Simplicity and Fairness

[This is a guest post, written by Dr Matthew Rimmer -- Abi]

OVER THE past decade, there have been a number of inquiries into the defence of fair dealing under Australian copyright law.

The current Australian Copyright Act 1968 has a defence of fair dealing, which provides protection against claims of copyright infringement. The defence is limited to particular purposes, such as research and study, criticism and review, reporting the news and use for judicial proceedings. The defence of fair dealing has been questioned for lacking clarity and certainty famously, judges of the Federal Court of Australia could not agree on whether The Panel's use of Channel Nine segments constituted a fair dealing in particular cases. The defence has also failed to keep up with technological and cultural developments.

At long last, the Attorney-General, Philip Ruddock, has introduced the hefty 219-page Copyright Amendment Bill 2006 into Parliament, declaring, ''The Government is committed to dealing with these challenges to copyright head-on, while seeking to also acknowledge the opportunities technology presents. We want laws in place which mean copyright pirates are penalised for flouting the law whilst ordinary consumers are not infringing the law through everyday use of copyright products they have legitimately purchased.'' The legislation has three main features. It introduces a range of miscellaneous exceptions to copyright infringement, provides for the stronger protection of digital copy protection and access codes demanded by the Australia-United States Free Trade Agreement, and will provide a wider array of civil and criminal remedies for copyright owners.

Unfortunately, the Bill will not meet its laudable objectives. The legislation is not ''net neutral'' thus it will apply to particular digital technologies in highly specific ways. It is also drafted in a highly convoluted way which will make it difficult for judges and lawyers to understand let alone everyday consumers, technology developers, and capitalists. It will certainly provide copyright owners with a wide range of civil and criminal remedies in respect of infringement of economic rights and circumvention of ''technological protection measures'', but it does not fix the manifold problems with the defence of fair dealing.

Instead, the Federal Government has created a range of nugatory miscellaneous exceptions, which are narrowly tailored to particular subject matter and technology, and specific purposes and activities. There is limited scope for recording broadcasts for replaying at a more convenient time (time- shifting). There is also a range of technology- specific provisions which allow for the reproduction of copyright material in a different format for private use. In particular, the legislation allows for format-shifting of sound recordings (in other words, space-shifting). However, some commentators have suggested that the tightly worded provisions would not currently cover the everyday use of an iPod or other MP3 player. Moreover, the podcasting and webcasting of radio broadcasts and similar programs has been excluded from the scope of such an exception.

The Government has also proposed a strange, catch-all provision which deals with various miscellaneous provisions. This clause deals with the use of copyright material for certain residual purposes such as non- commercial use by libraries, archives, and educational institutions, and for satire and parody. Such activities are subject to the so- called three-step test under World Trade Organisation regulations. This clause looks unworkable. Consider a cartoonist using a copyright work for instance, wittily depicting Labor Senator Stephen Conroy as a Dalek. The parodist would have to demonstrate that such a use was a special case, that the use did not conflict with the normal exploitation of the copyright work, and that the use did not unreasonably prejudice the interests of a copyright owner. The cartoonist would also have to engage in an interpretation of three-step test under international trade law (which will be difficult, given that there has been only one inconclusive WTO panel judgment on the subject). Such preconditions seem somewhat excessive hurdles for a satirist to have to jump.

Such nugatory, miscellaneous copyright exceptions are a poor substitute to the open- ended, flexible defence of fair use in the United States. The Supreme Court of the US has described the defence of fair use as ''the guarantee of breathing space for new expression within the confines of copyright law'' and called the defence ''an engine of free expression''. Not only does the fair use defence cover particular purposes such as criticism, comment, news reporting, teaching, scholarship and research, the US courts have held that it embraces such activities as time-shifting and space-shifting, parody and transformative uses, reverse engineering, and the use of thumbnail images in search engines. The doctrine provides a much wider safe harbour than that offered by the Government's Bill. The Bill needs reform in terms of form and content to meet academic Paul Goldstein's triple bottom line of ''brevity, simplicity and fairness'' and to ensure consumers, libraries, educational institutions, and technology developers enjoy the same freedoms and liberties enjoyed by their US counterparts.

Dr Rimmer is a senior lecturer at the ANU College of Law.

This guest post was first published as a guest opinion in the Canberra Times, 13 November 2006

See the Senate Report on the Copyright Amendment Bill 2006 (just released)

Media commentary on the Copyright Amendment Bill


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