A single, technology-neutral provision

10.49 Australia’s private copying exceptions should be less complex and more flexible. Currently, they are complex, prescriptive, and tied too closely to specific technologies.

10.50 A number of stakeholders agreed that a single, technology-neutral exception for private use, though not necessarily fair use, would simplify and clarify the Copyright Act. The ABC, for example, submitted that ‘a single, technology-neutral, format shifting exception with common restrictions that reflects the underlying policy of the exception would be preferable’.[45]

10.51 A technology-neutral approach to copyright policy might seem to suggest that whatever users may do using technology in their own home, they should be able to do using technology stored remotely. Individuals are increasingly using cloud computing services to store copies of copyright material, enabling consumers to access their content from multiple computers and devices more easily. This also raises the question, discussed in Chapter 7, of third parties facilitating private use.

10.52 Some stakeholders said that private copying exceptions should focus on the purpose of the use, rather than on any particular technology or the type of material being used.[46] This, it was said, would allow the law to adapt to new technologies.

10.53 Some called for a more technology-neutral application of time shifting exceptions, saying that they should not be confined to broadcast material. Ericsson submitted, for example, that a time shifting exception ‘should apply irrespective of content delivery method or underlying technology’ and that it ‘strongly believes that copyright law should adhere to a technology neutral principle, where the basis of an exception should be the purpose rather than the technology itself’.[47]

10.54 The focus should be on the nature of the activity, others submitted, rather than the type of content or platform. Is a service merely a recording and storage facility, or something more?[48]

10.55 The Internet Industry Association submitted that, if advertiser-supported broadcast television content were made available on the internet, without requiring payment of a subscription fee to access, then time shifting exceptions to copyright should apply.[49] The ABC made a similar point, but said the exception should be confined to ‘ephemeral content’—a scheduled stream of content, rather than content that can be watched on demand.[50]

10.56 The fair use and new fair dealing exceptions are both technology neutral. They are also not confined to particular types of copyright material, nor to particular rights. In these respects, they are considerably better suited for application to private uses that will use technologies and digital practices that change rapidly, often in unforeseen ways. But these technology-neutral exceptions need not apply equally to all similar technologies, just as they may not apply equally to all types of copyright material (as discussed in the following section). When fair use and fair dealing are applied, uses with some technologies may be found to be fair, while uses with other technologies may not. This is one of the strengths of fairness exceptions.

10.57 Fair use is also less complex than Australia’s current private copying exceptions. Case law applying fair use may not be widely understood by members of the public, and opinions about what is fair will vary, but at least the concept of fairness is relatively easy to comprehend.