Current law and criticisms

10.8 Format shifting and time shifting are two types of private use exception currently provided for in the Copyright Act.

10.9 Format shifting exceptions were enacted in 2006. They allow for the copying, in limited circumstances, of books, newspapers and periodicals,[1] photographs,[2] videotapes,[3] and sound recordings.[4] These exceptions have common elements. For example, the exceptions apply only if the owner of the original makes the copy, and the original is not an infringing copy. This raises questions about whether others should be able to make these copies for the owner’s private use.[5]

10.10 Some of these conditions may mean the exceptions do not apply to copies stored on remote servers in ‘the cloud’. For example, the exception for format shifting of sound recordings only applies if the copy is to be used with a device owned by the user.[6] Further, the exception for books, newspapers and periodicals only allows users to make one copy in each format, and storing content in the cloud may require multiple copies.[7]

10.11 The format shifting exception for films only applies to copies made from films in analog form.[8] It does not allow digital-to-digital copying. This means the exception does not apply to copies made, for example, from DVDs and Blu-Ray discs and digital copies downloaded from the internet. One reason given for this limitation is that ‘unrestricted digital-to-digital copying could allow consumers to reproduce the full picture quality and features provided in commercially produced digital film content’.[9] Many consumers find it surprising that the law prohibits them from copying a film they own from one computer or device to another, without a licence.

10.12 The time shifting exception in s 111 of the Copyright Act, which was also enacted in 2006, provides an exception for the making of ‘a cinematograph film or sound recording of a broadcast solely for private use by watching or listening to the material broadcast at a time more convenient than the time when the broadcast is made’.[10]

10.13 This exception is confined to recordings of ‘a broadcast’, defined to mean a communication to the public delivered by a broadcasting service within the meaning of the Broadcasting Services Act 1992 (Cth). By ministerial determination, a service that makes available television and radio programs using the internet is not a broadcasting service under the Broadcasting Services Act.[11] This raises the question of whether the time shifting exception in the Copyright Act should apply to some content made available online.[12] Another important question is how this exception should operate with new technologies and services, such as the cloud.[13]

10.14 The ADA and ALCC submitted that ‘the fact that the provisions introduced in 2006 are already technologically redundant and do not address current consumer practices argues in favour of a flexible, technology neutral private copying provision’.[14]

10.15 The existing exceptions for time shifting and format shifting have also been criticised for their complexity.[15]