Since 1975 the ALRC has had a history of independent inquiry into law reform, and over that time has developed a well-established, rigorous process, the results of which have gained a considerable degree of public respect and recognition of high quality outcomes. Within that established framework the process for each law reform project may differ according to the scope of inquiry, the range of key stakeholders, the complexity of the laws under review, and the period of time allotted for the inquiry. While the exact procedure needs to be tailored to suit each topic, the ALRC usually works within a particular framework when it develops recommendations for reform.
As is usual, in this Inquiry the ALRC consulted with relevant stakeholders, including the community and industry, and engaged in widespread public consultation.
The first stage of the Inquiry included the release of the Issues Paper in August 2012, to identify the issues raised by the Terms of Reference and suggest principles which could guide proposals for reform, as well as to inform the community about the range of issues under consideration, and invite feedback in the form of submissions. The Issues Paper generated 295 submissions.
On 30 May 2013 a Discussion Paper was released and the ALRC again called for submissions to inform the final stage of deliberations leading up to the Report. In total, the ALRC received 870 public and 139 confidential submissions to the Inquiry.
The ALRC also undertook 109 consultations. Key stakeholders were invited, and took the opportunity, to advise on the composition of industry roundtable meetings. In addition, industry-specific roundtable meetings, consultations and visits were conducted on numerous occasions.
Consultations and submissions included those with and from:
academics (individuals and groups);
creators and organisations (authors, directors, photographers and others);
the education sector;
the GLAM (galleries, libraries, archives and museums) sector;
government authorities (Australian Competition and Consumer Commission; the Australian Communications and Media Authority; IP Australia and many others);
media and broadcasting and related organisations and industry bodies;
online service providers;
publishers and publisher organisations; and
rights management organisations.
Internet communication tools—including an enewsletter and online forums—were used to provide information and obtain comment. The ALRC also made use of Twitter to provide information on relevant media reports, as well as to provide a further avenue for community engagement.
The ALRC acknowledges the contribution of all those who participated in the Inquiry consultation rounds and the considerable amount of work involved in preparing submissions. It is the invaluable work of participants that enriches the whole consultative process of ALRC inquiries and the ALRC records its deep appreciation for this contribution.
In addition to the contribution of expertise by way of consultations and submissions, specific expertise is also obtained in ALRC inquiries through the establishment of its Advisory Committees and the appointment of part-time Commissioners.
The role of the Advisory Committee is to advise on coherence and structure of the ALRC process and recommendations; it does not formulate reform recommendations, and members are invited in their individual capacity. They are explicitly asked not to act in any representative capacity.
The ALRC acknowledges the contribution made by the part-time Commissioners, Advisory Committee and expert readers in this Inquiry and expresses gratitude to them for voluntarily providing their time and expertise.
Outline of the Report
Chapter 1 outlines the background to the Inquiry, analyses the scope of the Inquiry as defined by the Terms of Reference, and describes previous and related inquiries. It also describes and comments on the Inquiry process and on the development of the evidence base supporting the law reform response reflected in the recommendations of the Report.
Chapter 2 identifies and discusses five framing principles, which define the policy settings for this Inquiry.
Chapter 3 discusses some of the broader context within which the ALRC conducted this Inquiry and comments on the Terms of Reference, drawing out some concerns of stakeholders about the scope of the Inquiry, and identifying aspects of the needs and expectations of Australian business and consumers.
Chapters 4 and 5 make the case for introducing a broad, flexible exception for fair use into the Copyright Act. Chapter 4 locates fair use in Australia’s longstanding fair dealing tradition. The move from closed-ended fair dealing to open-ended fair use represents a move from prescriptive categories to a more principled approach. In Chapter 4, the ALRC explains how fair use can encourage public interest and transformative uses, and promote innovation, while at the same time respecting authorship and protecting rights holders’ markets.
Chapter 5 outlines key elements of the recommended fair use exception. These are a non-exhaustive list of four fairness factors, which should be considered in assessing whether use of copyright material is fair use, and a non-exhaustive list of eleven illustrative purposes. It also discusses how the interpretation and application of the fair use exception may be guided by existing Australian case law, other jurisdictions’ case law, and the development and use of industry guidelines and protocols. The ALRC also recommends that the existing fair dealing exceptions, as well as broader exceptions for professional advice, be repealed.
Chapter 6 considers an alternative to an open-ended fair use exception, namely, a new fair dealing exception that consolidates the existing fair dealing exceptions in the Copyright Act and introduces new prescribed purposes. The ALRC recommends that, if fair use is not enacted, this new fair dealing exception be introduced.
Chapter 7 examines ‘third party’ uses of copyright material, where an unlicensed third party copies or otherwise uses copyright material on behalf of others. These are unlicensed uses to deliver a service, sometimes for profit, in circumstances where the same use by the end user would be permitted under a licence or unremunerated exception. The ALRC concludes that such uses should be considered under the fair use or new fair dealing exceptions, in determining whether the use infringes copyright.
Chapter 8 discusses statutory licences, which allow for certain uses of copyright material, without the permission of the rights holder, subject to the payment of reasonable remuneration. The ALRC has concluded that there is a continued role for the statutory licences in pts VA, VB and VII div 2 of the Copyright Act, but they should be made less prescriptive. Many of the criticisms of the statutory licences are better directed at the scope of unremunerated exceptions, and would be largely addressed by the introduction of fair use.
The ALRC recommends that a fair use exception should be applied when determining whether quotation infringes copyright and that ‘quotation’ should be an illustrative purpose in the fair use exception. Chapter 9 considers various uses of copyright material in quotation, and describes examples of quotation that may be covered by fair use but are, in at least some circumstances, not covered by existing fair dealing exceptions. It also explains how the concept of quotation can be expected to be interpreted under a fair use exception.
In Chapter 10, the ALRC recommends that the existing exceptions for time shifting broadcasts and format shifting other copyright material be repealed. Instead, fair use or the new fair dealing exception should be applied when determining whether a private use infringes copyright. These fairness exceptions are more versatile, and are not confined to technologies that change rapidly. ‘Non-commercial private use’ should be an illustrative purpose in the fair use exception.
Incidental or technical uses—such as caching and indexing—are essential to the operation of the internet and other technologies that facilitate lawful access to copyright material. Chapter 11 considers incidental or technical uses of copyright material and data and text mining. The ALRC concludes that current exceptions in the Copyright Act are uncertain and do not provide adequate protection for such uses, and should be repealed. The ALRC recommends that such uses should be considered under the fair use exception and that ‘incidental technical use’ should be an illustrative purpose of fair use. Similarly, the fair use exception should also be applied in determining whether data and text mining constitute copyright infringement.
Chapter 12 considers uses of copyright material by libraries and archives in the digital environment. The ALRC recommends that ‘library and archive use’ should be an illustrative purpose of the fair use exception or, if fair use is not implemented, the Copyright Act be amended to introduce a new fair dealing exception, including ‘library and archive use’ as a prescribed purpose. The ALRC also recommends a new preservation exception for libraries and archives that does not limit the number of copies or formats that may be made. As a consequence of the new exception, a number of existing exceptions should be repealed.
Chapter 13 discusses orphan works—copyright material with no owner that can be identified or located by someone wishing to obtain rights to use the work. The ALRC recommends that the Copyright Act be amended to provide that remedies available for copyright infringement be limited where the user has conducted a ‘reasonably diligent search’ for the copyright owner, and, where possible, has attributed the work to the author. The chapter also discusses options for the establishment of an orphan works or copyright register, which could be the subject of further consideration by the Australian Government.
Chapter 14 concludes that new exceptions are needed to ensure educational institutions can take full advantage of the wealth of material and new technologies and services now available in a digital age, and that these exceptions should be fair use or the new fair dealing exception. These exceptions would permit some unremunerated use of certain copyright material for educational purposes, without undermining the incentive to create and publish education material. ‘Education’ should also be included as an illustrative purpose in the fair use exception.
Chapter 15 considers government use of copyright material and recommends that the current exceptions for parliamentary libraries and judicial proceedings should be retained, and further exceptions for government use added. These new exceptions should cover use for public inquiries, uses where a statute requires public access, and use of material sent to governments in the course of public business. Governments should also be able to access the general fair use exception, and other exceptions in the Copyright Act, and exceptions should be available to Commonwealth, state and local governments.
The Copyright Act provides for a statutory licence for institutions assisting people with disability. Chapter 16 examines this licence, which has limited scope, onerous administrative requirements and has not facilitated the establishment of an online repository for people with print disability. The ALRC recommends that access for people with disability should be an illustrative purpose listed in the fair use exception. Many uses for this purpose will be fair, as they are transformative and do not have an impact on the copyright owner’s existing market.
Chapter 17 discusses exceptions for computer programs and for backing-up all types of copyright material. The ALRC concludes that the use of legally-acquired copyright material for the purpose of back-up and data recovery will often be fair use, and should be considered under the fair use exception. 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.
Chapters 18 and 19 examine exceptions that relate to free-to-air television and radio broadcasting. Chapter 18 examines exceptions that apply to the retransmission of free-to-air broadcasts and whether they are adequate and appropriate in the digital environment. This raises complex questions at the intersection of copyright and communications policy. The ALRC recommends that, in the light of media convergence, the Australian Government should consider whether aspects of the retransmission scheme for free-to-air broadcasts should be repealed.
Chapter 19 discusses other exceptions that refer to the concept of a ‘broadcast’ and ‘broadcasting’. In a changing media environment, distinctions currently made in copyright law between broadcast and other platforms for communication to the public require justification. Innovation in the digital economy is more likely to be promoted by copyright provisions that are technologically neutral. The ALRC recommends that, in developing media and communications policy, and in responding to media convergence, the Australian Government give further consideration to reform of these broadcast exceptions.
Chapter 20 discusses ‘contracting out’—agreement between owners and users of copyright material that some or all of the statutory exceptions to copyright are not to apply. The ALRC recommends that the Copyright Act should not provide any statutory limitations on contracting out of the new fair use exception. However, if the fair use exception is not enacted, limitations on contracting out should apply to the new consolidated fair dealing exception. The ALRC also recommends that, in either case, the Copyright Act should provide statutory limitations on contracting out of the libraries and archives exceptions.
Framing principles for reform
The ALRC has identified five specific framing principles to define the policy settings for this Inquiry. The principles are derived from existing laws, other relevant reviews and government reports, international policy discussions and reviews. They are also principles stakeholders have identified in response to the Issues Paper and Discussion Paper.
The framing principles are:
acknowledging and respecting authorship and creation;
maintaining incentives for creation and dissemination;
promoting fair access to content;
providing rules that are flexible, clear and adaptive; and
providing rules consistent with international obligations.
D Weisbrot, ‘The Future for Institutional Law Reform’ in B Opeskin and D Weisbrot (ed), The Promise of Law Reform (2005), 25.
Australian Law Reform Commission, Copyright and the Digital Economy, IP 42 (2012).
Australian Law Reform Commission, Copyright and the Digital Economy, Discussion Paper 79 (2013).
The public submissions are available on the ALRC website at: www.alrc.gov.au.