Copying for private use

70. Many Australians make copies of copyright material—perhaps most commonly, music, television programs and films—for their own private use. In practice, these copies may be stored on and accessed from home computers, personal video recorders, digital discs, portable devices such as smart phones and tablets, and on other devices. Increasingly, as noted above, copies may be stored on remote computer servers.^[83]

71. This section will briefly discuss three types of exceptions now in the Copyright Act that relate to copying for private use, consider their operation, and ask whether they need to be amended and whether further exceptions need to be introduced.

72. One policy justification for introducing such exceptions is that Australians routinely make copies for their private use, and do not believe that this should be against the law. The Explanatory Memorandum for the Copyright Amendment Bill 2006, which introduced two important types of exceptions for private copying—time and format shifting—stated that failure to recognise such common practices ‘diminishes respect for copyright and undermines the credibility of the Act’. The Explanatory Memorandum also stated that not recognising such practices is ‘unsatisfactory for industries investing in the delivery of digital devices and services’.^[84]

Format shifting

73. Exceptions were introduced to the Copyright Act in 2007 for the ‘format shifting’ of books, newspapers and periodicals;^[85] photographs;^[86] videotapes;^[87] and sound recordings.^[88] These exceptions have common elements. For example, all of the exceptions apply only if the owner of the original makes the copy, and the original is not an infringing copy.

74. As discussed above, some of these conditions may mean the exceptions do not apply to copies stored on remote servers in the cloud.^[89] 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.^[90] Also, 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 the making of multiple copies.^[91]

75. All the format shifting exceptions apply only if the owner of the earlier copy makes the later copy. This raises questions about whether others should be able to make these copies for the owner. For example, should companies be free to offer a copying service, without the licence of rights holders, if the copies it makes are only to be used for a purpose permitted under the Copyright Act, such as for the private and domestic use of the owner of the original copy?

76. The format shifting exception for films only applies to copies made from films in analog form.^[92] It does not allow digital-to-digital copying. This means the exception does not apply to copies made from, for example, 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’.^[93]

77. Copyright owners may license users to make multiple copies of copyright material, or otherwise access copyright material from multiple computers, phones, tablets and other devices. For example, subscription music services,^[94] relatively new to Australia, may allow users to stream music to multiple devices and download music files to their smart phones. Comparable cloud services allow users to watch films and television programs from multiple devices. Films sold on DVD and Blu-ray discs are sometimes sold with a digital file that may be stored and played on, for example, computers and personal video recorders. Books bought on the Kindle store, to take another example, may be read by consumers using a Kindle or a Kindle app on a smart phone, computer or other device.

78. The provision of these licensed services may suggest there is a market for providing consumers with multiple copies of copyright material, or access to such material from multiple devices, for private and domestic use and that rights holders are increasingly exploiting this market. This might suggest to some that non-remunerated exceptions for private copying are either unnecessary or should be restricted.

79. The format shifting exceptions are complex. One way of simplifying the exceptions might be to consolidate them. Rather than a separate format shifting exception for each type of work (one for films, one for music, etc), each with its own conditions, Canada’s Copyright Modernization Act 2012 (Can) contains only one exception for reproductions for private purposes. This exception applies to ‘a work or other subject-matter or any substantial part of a work or other subject-matter’.^[95] This has the virtue of simplicity, which may be particularly important for exceptions that need to be understood by members of the public.

80. The Australian Government reviewed the format shifting exceptions for films and photographs in 2008, but recommended that no changes be made at the time. The review considered whether the two exceptions should be made to align with the broader exception for format shifting of music. The Department stated that it recognised the advantages of consistency and simplicity, but also that:

The test of financial harm must be applied to particular markets. Markets for digital music, photographs and films are very different. This will produce differences in exceptions unless they are drafted in a common form which causes no substantial harm to any copyright market.^[96]

81. The ALRC invites submissions on whether the exceptions for format shifting—or indeed for private copying more broadly—should be simplified, consolidated, and made consistent, and if so, how this might be achieved. Also, if a broad and flexible exception based on ‘fair’ or ‘reasonable’ use^[97] were introduced to the Copyright Act, would a specific exception for format shifting be necessary? The time shifting exception raises similar questions.

Time shifting

82. Section 111 of the Copyright Act, introduced in 2007, provides an exception for the making of ‘a cinematograph film or sound recording of a broadcast solely for private and domestic use by watching or listening to the material broadcast at a time more convenient than the time when the broadcast is made’.^[98]

83. The ALRC is interested in how this exception is operating, particularly in light of recent and anticipated changes in the digital environment, and in comments on whether the exception should be extended or confined.

84. The current time shifting 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.^[99] This raises the question of whether the time shifting exception in the Copyright Act should apply to content made available using the internet or internet protocol television.

85. Another important question is how this exception should operate with new technologies and services, such as the cloud. The answer to this question may depend on the nature of the service. Recordings made by consumers using their own technology but later stored on a remote server may be distinguished from recordings made by companies (not licensed by rights holders) and stored on remote servers for their subscribers to access. The ALRC is interested in whether this distinction is important from a policy perspective, and if so, why.

86. The Full Federal Court considered this relatively new exception in National Rugby League Investments Pty Ltd v Singtel Optus Pty Ltd.^[100] Optus has filed an application for special leave to appeal the decision to the High Court of Australia. The case concerns Optus TV Now, a service that enabled a subscriber to:

have free to air television programmes recorded as and when broadcast and then played back at the time (or times) of the subscriber’s choosing on the subscriber’s compatible Optus mobile device or personal computer. The system which permits such ‘time-shifting’ of programme viewing requires the copying and storing of each television broadcast recorded for a subscriber, hence the allegations of copyright infringement in this matter.^[101]

87. Section 111 may have been intended to be a technology-neutral exception, but the Full Federal Court observed that the language of the section does, in fact, exclude certain later technological developments in copying. The Court stated that ‘no principle of technological neutrality can overcome what is the clear and limited legislative purpose of s 111’.^[102] This raises the question of whether the section should be amended to include new technological developments in copying, and the broader question of the merits of technology-neutral policy and law.

88. The Optus TV Now case also highlights the question of whether the time shifting exception should cover copying by a company on behalf of an individual. Importantly, such copying of copyright material by commercial entities may lower the value of rights to distribute the material. Services such as Optus TV Now may be thought of as elaborate digital video recorders, but if such new services have a significant effect on the market for broadcast copyright material, then some will call for s 111 to be confined.

89. To address the complexity of the statutory exceptions, one option for reform of the exception for time shifting might be to integrate it with other permissible free uses under a broader and more flexible general exception, such as the broad and flexible exception based on ‘fair’ or ‘reasonable’ use,^[103] or a new general exception for private and domestic use.

Back-up and data recovery

90. This section considers whether the Copyright Act should permit Australians to copy and store their own collections of copyright material, for the purpose of back-up and data recovery.

91. There is a specific exception in s 47C for making back-up copies of computer programs, and ‘any work or other subject matter held together with the program on the same computer system’. The ALRC is interested in how this exception is operating, and whether it is sufficiently broad. For example, does it allow users to back-up copyright material such as sound recordings, films, images and books that they have legally acquired or licensed and, if not, should this be more freely permitted? This question was raised by the Fair Use Review, but s 47C was not subsequently amended.^[104]

92. The new Canadian exception for back-ups applies broadly to ‘a work or other subject-matter’, and provides that a person who owns or has a licence to use the source copy may reproduce it ‘solely for backup purposes in case the source copy is lost, damaged or otherwise rendered unusable’.^[105] The original must not be an infringing copy, the person must not circumvent a TPM to make the copy, and the person must not give away any of the reproductions.^[106]

93. This Canadian exception appears to be technology-neutral and to apply to a broad range of copyright material. The ALRC welcomes submissions on whether the Australian Copyright Act should contain a similar exception.

94. Other questions include whether the exception in s 47C allows for back-up copies to be copied to and downloaded from remote cloud servers,^[107] and the potential for TPMs to prevent users from making copies of the content for their own private and domestic use.