Complexity of copyright law

3.37 Aligned with principle 4 discussed in Chapter 2, the ALRC considers that one aspect of this Inquiry should be to reduce, where possible, the complexity of the current Copyright Act and, with that, transaction costs for users and rights holders.

3.38 Reform should not add further complications to an already complex statute.[43] Ideally, reform should promote clarity and certainty for creators, rights holders and users.

3.39 The many amendments to the current legislation have resulted in complex numbering and ‘a feeling that the Act is unable to be understood by copyright creators and users’.[44] Aspects of the Act are ‘pointlessly narrow’ and there are ‘obvious deficiencies in drafting’.[45]

3.40 Chief Justice French regards the complexity of copyright law as obscuring concepts of ‘what is just and fair’ and this makes enforcement difficult:

the complexity of law today can deprive it of moral clarity and thus detach it from concepts of what is just and fair. To that extent, the perceived legitimacy of the law may depend more upon the fact that it has been enacted through democratic process than because people think it is a good law. That may be sufficient for most. However it makes the job of securing compliance more difficult.[46]

3.41 Reducing complexity can have a number of dimensions. Certainly, stakeholders are largely in favour of the concept of not making the statute more complex than it already is. Many went further and suggested overall simplification of what is already there. The fear is always that attempting either aspect—let alone both—will result in even greater incoherence.[47]

3.42 For law to be meaningful, ‘first, the law must be understandable, and if understood it must appear to the user to be reasonably possible to comply with its requirements’.[48] Setting out compliance requirements in exhaustive detail may seem to avoid uncertainty, but is not easy to understand, and may not further the law’s aims. The Internet Industry Association noted that the Copyright Act

contains many provisions designed for specific cases and circumstances that appear to apply similar fundamental principles. This makes the Act difficult to penetrate, even for specialists.[49]

3.43 ACCAN pointed to complexity that results from having ‘exceptions confined to particular devices’.[50] Similarly, News Corp and Foxtel would welcome having four separate format shifting exceptions replaced by one.[51]

3.44 The National Archives of Australia considered that the complexity of copyright law was an impediment to providing ‘fair access to archival material’[52] and State Records of South Australia asked for ‘simplification and consolidation of exceptions’ as the ‘complexity and piecemeal nature of the Act makes the provision of access to information difficult for both the public and archival institutions’.[53] While ‘a degree of complexity may be unavoidable’,[54] a number of stakeholders submitted that there is considerable scope for changing copyright law to make it more accessible:

Copyright law needs to be in step with common, established community practice. This is important to promote public perception of copyright law as a constructive, flexible and sensible framework for governing protection and access to content.[55]

3.45 APRA/AMCOS pointed to the undesirability of having ‘comprehensibility of a statute’ as an underlying principle for law reform, recognising, however, that unnecessary complexity results from the current confusion and redundancy in the legislation.[56]

3.46 Some stakeholders considered that reform for the purposes of simplification and clarity may be a ‘Trojan horse’ for substantive change in the law—there is opposition to using a ‘reducing complexity argument to support the introduction of a broad “fair use” exception’.[57]

3.47 Others argued that any reform necessarily causes increased complexity, as adaptation is needed to the alterations.[58] While accepting that lawyers will always be needed to interpret complex legislation,[59] the ALRC considers that willingness to develop an understanding of desirable reform by stakeholders should be assumed.

3.48 Many stakeholders endorse the view that a working understanding of copyright law should be more accessible so as to reduce transaction costs and facilitate more efficient transactions for business,[60] the public[61] and other users.[62]

3.49 This Inquiry is not aimed at overall simplification of the Copyright Act, despite the concern of many stakeholders over the complexity and difficulty of the legislation. However, the ALRC considers that the reforms recommended do not add to that complexity, but rather provide a clearer and more adaptive framework.

3.50 Recommendations in this Report are designed to reduce legislative complexity and create a better environment for business, consumers, education and government. For example, the recommendations relating to statutory licensing are aimed at removal of much of the overly-prescriptive rules relating to the operation of the licenses, which are increasingly irrelevant in a digital environment. The ALRC considers that the introduction of fair use will create a more flexible, adaptive and relevant copyright environment.