Social norms, user rights and new technologies

10.35 Many common private uses of legally acquired copyright material infringe Australian copyright law. Some of these private uses are widely thought by the public to be fair. This is one factor that suggests that some private uses of copyright material should not infringe copyright.

10.36 Many stakeholders said that Australians do not understand or respect the current copyright laws, and that the law does not reflect community attitudes or practice. The Copyright Act is said to be ‘out of sync with consumer behaviour and contemporary attitudes,’ because

technology and the myriad applications available to consumers provide consumers with new, cheap (often free) ways to use and store material, including copyright material, particularly for personal use.[28]

10.37 Expanding private use exceptions would simply legalise what consumers are already doing, some said. Many submitted that the law should take account of consumer expectations. Commercial Radio Australia, for example, said:

The current copyright framework cannot be considered fit for the digital age when so many users repeatedly breach copyright, simply by shifting a piece of content from one device to another. Users expect to be able to store content on a variety of devices—including computers, mobile phones, tablets—and in a variety of locations, such as on local servers and in the cloud. Copyright law should recognise these changing use patterns and reflect them, to permit private individuals to take advantage of new technologies and storage devices available.[29]

10.38 The ADA and ALCC submitted that the current private use exceptions ‘draw arbitrary lines not consistent with ordinary consumer behaviour: making the law ridiculous’.[30]

10.39 Professor Kathy Bowrey submitted that changing technologies, often beyond the consumer’s control, can ‘effectively frustrate or terminate access to legitimate works’. An ebook bought for one device, for example, will often not work on another. Bowrey said it is ‘hard for consumers to understand why they do not have the right to maintain functional access to content they have purchased, because of technical decisions made by third parties’.[31]

10.40 Ericsson submitted that consumers ‘increasingly expect to be able to consume creative content on demand, anytime, any device and anywhere’ and the ability to copy lawfully acquired content within the private sphere is an ‘integral and necessary step of modern consumer behaviour’.[32]

10.41 Professor Pamela Samuelson, discussing US law, has said that ‘ordinary people do not think copyright applies to personal uses of copyrighted works and would not find acceptable a copyright law that regulated all uses they might make of copyrighted works’.[33] Other US academics refer to research that suggests that ‘most members of the public … believe that personal use copying is acceptable as long as the copies are not sold’.[34] There is a core belief, Ashley Pavel argues, that strictly private uses of a purchased copy are ‘none of the copyright owner’s business’.[35]

10.42 Laws that are widely ignored also lower the community’s respect for the law more generally, and particularly other copyright laws. The force of the message that peer-to-peer file sharing of copyright material between strangers is illegal may be diluted by the message that copying a purchased DVD to a computer for personal use is also illegal. The Explanatory Memorandum for the Copyright Amendment Bill 2006 stated that failure to recognise such common practices as time and format shifting ‘diminishes respect for copyright and undermines the credibility of the Act’.[36]

10.43 Many stakeholders made these points. The ACCC said that failing to recognise common practices, such as format shifting purchased music or time shifting a broadcast, ‘diminishes respect for copyright and undermines the credibility of the Act’.[37] The Law Institute of Victoria said that, ‘if the law significantly diverges from widespread expectation and common community practice, then there is a serious risk that credibility for copyright law will become undermined’.[38] Similarly, eBay submitted:

The respect for copyright and the credibility of the Act depend on its ability to accommodate the ordinary use and enjoyment of legally obtained digital material by ordinary members of the public.[39]

10.44 Choice suggested that many consumer expectations with respect to private copying were ‘perfectly reasonable’.[40]

If consumers feel like copyright law is out-of-touch or even unjust, then their respect for it will diminish. This may make it easier for consumers to justify other activities, such as piracy, as they already feel that copyright law is nothing to be taken seriously. This ultimately undermines the rights of copyright owners and also the benefits to consumers of ensuring the creators of copyright material are properly rewarded.[41]

10.45 However, other stakeholders were sceptical of the relevance of social norms to copyright policy. Some stressed that consumer expectations and behaviour should not justify changes to the law. The Australian Directors Guild said it was alarming and simplistic to consider community standards: ‘It may be common practice for people to smoke Marijuana but should we make it legal? It may be common practice for teenagers to drink underage but should it be made legal?’[42] Foxtel submitted:

While we understand the Government’s desire to ensure that Australian copyright law keeps pace with legitimate consumer practices, simply because digital technology is available which makes copying and storing content easier does not mean that the law should be amended to legitimise infringing conduct.[43]

10.46 Others said that, if the public does not know that common practices are illegal, then this is not an argument for law reform, but for a public awareness campaign.[44]

10.47 The ALRC agrees that social norms should not dictate the law. But the law should at least account for social norms—policy makers must consider community standards. If a practice is very widespread, and commonly thought to be harmless, then this should be considered when determining whether the practice should be prohibited. It may also be a relevant factor to consider when applying fair use or fair dealing.

10.48 By appealing to fairness and requiring consideration of real market harm, fair use and the new fair dealing exception better account for these social norms than the existing prescriptive and confined private copying exceptions.