10.77 Some submitted that private copying exceptions should only apply where someone has legally acquired a permanent copy of the copyright material. The new private copying exception being considered in the UK only applies where the individual had lawfully acquired, on a permanent basis, the copy from which further copies are made.
10.78 The ALRC agrees that a private use will be more likely to be fair, where the user owns a permanent copy of the original. It would rarely, if ever, be fair use for a person to make digital copies of films and CDs the user has borrowed from friends or from a library. But it may be fair use to make a copy of a broadcast television program, so that the user may look at the material at a more convenient time (currently permitted under the Copyright Act). It also may be fair use in some circumstances to keep a copy of a page of a website for later reference.
10.79 The ALRC does not recommend that a rule about this be set in the Act. This matter is better considered along with other relevant matters, in determining whether a use is fair.
Own device or in the cloud
10.80 It is now commonplace to use remote servers in ‘the cloud’ for private storage and use of copyright material. Many computer programs and internet browser add-ons also allow users to copy and store internet content such as web pages for later viewing, often storing the content in the cloud and giving users access from multiple devices.
10.81 Private copying exceptions should not be confined to copies stored on a computer or device owned by the person making the copy. If private copying exceptions cannot apply to the use of copyright material using cloud-based technologies, then Australian copyright law will not be fit for the digital age.
10.82 This is not to say that third parties, such as companies that provide cloud computing services, should necessarily be free to use copyright material for their customers in all circumstances. Such third parties, including cloud service providers, offer a range of services across a wide spectrum. Pure storage in digital lockers may be on one end of the spectrum and, in the ALRC’s view, should be fair use.
Disposal of original
10.83 Private copying will be much less likely to be fair if the user gives the new or original copy to someone else. Sharing copyright material in this way can clearly harm a rights holder’s market, reducing the incentive to create and distribute copyright material. A person should not be free to ‘rip’ their CD collection and then sell their CDs. For this copying to be fair, the CDs should either be stored or destroyed.
10.84 The existing private copying exceptions feature an explicit limitation, providing for example that the exception ‘is taken never to have applied if the owner of the original photograph disposes of it to another person’. This seems too strict. If a person copies a CD, listens to a copy on his or her iPod for a few years, then later wishes to sell the CD or give it away, then the person should simply be required to delete the copies before disposing of the original.
For example, Foxtel, Submission 748; Australian Film/TV Bodies, Submission 739.
Third party facilitators and cloud technologies are discussed in Ch 7.
Copyright Act 1968 (Cth) s 47J(6).
See further, R Xavier, Submission 146: ‘Also, a problem with some of the existing format-shifting exceptions is the way that the act of format-shifting is retrospectively deemed to have been an infringement if the original copy is disposed of to someone else (see eg s 47J(6)). This seems to mean that if a copy is made for the purposes of format-shifting, the original can never be dealt with again even if the format-shifted copy is destroyed. … This retrospectivity should be fixed throughout the Act, as it appears several times.’