Published on 24 April 2013.

Issue 6 | 24 April 2013.  View original format.

Save the date–for Discussion Paper submissions

This month the Copyright team is busy writing, preparing to release a Discussion Paper (DP)—the second consultation document for the Copyright and the Ditgital Ecomony inquiry. We expect to have the full DP up on the ALRC website by Tuesday 4 June, including the e-book format.

The DP will offer some preliminary options for reform, including a range of alternatives. We will again call for submissions to build upon the evidence base established so far to inform the final stage of deliberations prior to the final Report. Stakeholders will have eight weeks to make submissions responding to the questions and proposals in the DP. The closing date for submissions will be Friday July 26.

Meanwhile, an Advisory Committee meeting took place on 11 April, and since then the team has held two roundtable consultations—with the galleries, libraries, archives and museums (GLAM) sector and with content owners. A third roundtable with creators will take place in coming weeks, and a further round of consultations will begin after the release of the Discussion Paper. 

New developments

Broadcasting

One set of issues not raised in the Issues paper but which the ALRC will examine in the Discussion Paper relates to the operation of exceptions in the Copyright Act that refer to the concept of a ‘broadcast’ and ‘broadcasting’. Copyright issues arise where radio stations stream content simultaneously on the internet that is identical to their terrestrial broadcasts (‘simulcast’). In Phonographic Performance Company of Australia Limited v Commercial Radio Australia Limited, the Full Court of the Federal Court held that, in doing so, a radio station was acting outside the terms of its statutory licence, as internet streaming is not a ‘broadcast’. An application for special leave to appeal this decision to the High Court was filed in March 2013. 

In a related development, the Senate Environment and Communications References Committee is to examine the effectiveness of current regulatory arrangements (under the Broadcasting Services Act and the Copyright Act) in dealing with simulcasts. The Committee is due to report by 1 June 2013.

Aereo — US

Those who followed the Federal Court cases concerning the Optus TV Now service may also be interested in the fate of US company, Aereo. Aereo transmits live broadcast television to its customers via the Internet, but does not pay the retransmission fees that cable companies pay to broadcasters.

Earlier this month, a US court of appeal concluded that that 'Aereo's transmissions of unique copies of broadcast television programs created at its users' requests and transmitted while the programs are still airing on broadcast television are not ‘public performances’ of the Plaintiffs' copyrighted works under Cablevision.'

In a dissenting opinion, the Aereo service was described as ‘over-engineered in an attempt to avoid the reach of the Copyright Act and to take advantage of a perceived loophole in the law’. The decision is likely to be appealed.

Meltwater case — UK

In Public Relations Consultants Association v The Newspaper Licensing Agency and Others [2013] UKSC, the UK Supreme Court stated that automatic ‘cached’ copies made to allow users to browse the internet does not constitute infringement. The Court referred the matter to the Court of Justice of the European Union.

Meltwater uses automated software to create a daily index of words appearing on newspaper websites. Meltwater’s customers supply it with search terms which are run against the index. The results are delivered to its customers by email, and are also provided on Meltwater’s website. The real question on appeal, the Court said, was 'whether Meltwater’s customers would need a licence to receive its service if the monitoring report were made available only on Meltwater’s website.'

The case turned on the interpretation of Article 5.1 of the "InfoSoc" Directive (2001/29/EC), which broadly permits temporary copies automatically produced as an integral part of a technological process. The court found that since Article 5.1 authorises the making of copies to enable an end-user to view copyright material, it follows that ‘ordinary technical processes’ which go with it must also be allowed. It noted that the technical process required to browse the internet could not function ‘correctly or efficiently’ without such temporary copies.

Orphan works — US

The US Copyright Office is continuing its Orphan Works Review. The Office is to consider the ‘current state of play for orphan works’ and ‘what has changed in the legal and business environments in the last few years that might be relevant to a resolution of the problem and what additional legislative, regulatory, or voluntary solutions deserve deliberation'. The ALRC is keeping a close eye on the review and our interns are summarising the issues coming out of the first round of submissions.

Interns on the Copyright inquiry

In February we were fortunate to have the assistance of three law student interns full-time for three weeks. As this was during the university break we were able to host interns from outside the Sydney area and Kiri McEwan, Christopher Stackpoole and Penelope Swales enthusiastically took part in helping us analyse submissions.

Two weeks ago we welcomed three more interns, Oliver Doraisamy, Steven Gardiner and Bronte Lambourne who are also doing excellent work in chasing up final details for the Discussion Paper.

Applications for the Second Semester program close on 8 July 2013.