The Executive Director
Australian Law Reform Commission
GPO Box 3708
Sydney NSW 2001
Email: copyright@alrc.gov.au
Re: ALRC – Copyright and the Digital Economy – Issues Paper (IP42) August 2012
Ericsson welcomes the opportunity to respond to the ALRC Ericsson is the world’s leading provider of technology and services to telecom operators. Ericsson is the leader in 2G, 3G and 4G mobile technologies, and provides support for networks with over 2 billion subscribers and has the leading position in the managed services business domain. The company’s portfolio comprises of mobile and fixed infrastructure, telecom services, software, broadband and multimedia solutions (including IPTV and Mobile TV) for operators, enterprises and the media and broadcasting industry. The ST-Ericsson joint venture provides consumers with feature-rich personal mobile devices.
As the world’s leading network infrastructure and managed services provider for mobile network operators, Ericsson plays a key role in the development of standards for mobile telephony and mobile broadband technologies, and seeks to ensure a globally harmonised allocation of spectrum to foster a global eco-system of network infrastructure, handsets, and other devices to benefit enterprises and consumers. 
Ericsson has one of the industry’s strongest telecom technology portfolios, with around 30,000 granted patents worldwide and is the leading patent holder for 3GSM family of mobile network equipment standards: GSM / UMTS / WCDMA / LTE.  Ericsson is the leading vendor in supplying LTE equipment to mobile operators around the world, and is a net receiver of licensing royalties with more than 90 patent-licensing agreements in place.
Ericsson is the fifth largest Information Technology Company by software revenues, following Microsoft, IBM, Oracle and SAP. 
Ericsson employs over 100,000 staff worldwide and over 20% or 22,000 of those are dedicated to R&D.  Ericsson invested SEK 32.6 billion (USD 4.9 billion) in R&D in 2011.
Ericsson makes its technology available to others, and is a champion of industry practice on FRAND (Fair, Reasonable and Non-Discriminatory) licensing. 
In agreement and in support of telecommunication developments, the ACMA as well as Government authorities around the world play a significant role in maximizing the societal benefits of convergence and in creating incentives for industrial and societal transformation toward a digital networked society.
Ericsson has been an active industry participant in Australia since the 1950s, and currently has a strong presence of around 1400 employees, delivering high-value professional services capability across the Asia Pacific region, and establishing the first LTE Global Competence Centre for technical innovation and global support.  Locally, Ericsson is also a member of following Australian Industry Associations: AIG, AMTA, and CommsAlliance.
Finally, as a member of the Australian Industry Group, Ericsson is also a contributor to this association’s submission and is also actively involved with the ongoing discussions between the CommsAlliance and the ALRC on this matter.

1	
Ericsson’s position on key questions 
1.1	The Inquiry
Question 1. The ALRC is interested in evidence of how Australia’s copyright law is affecting participation in the digital economy. For example, is there evidence about how copyright law:
(a)	affects the ability of creators to earn a living, including through access to new revenue streams and new digital goods and services;
The incentive value of copyright has to do with real and relevant practicalities, such as for creative artists to earn a living and be compensated for their work.   Copyright law, on the other hand, only stipulates the copyright standard and the rights that protect authors, but authors almost always have to contract with an intermediary or distributor in order to market their work, and it is the terms of the contract between them that determine the eventual financial reward to the author"  (page 106)
According to Towse (2011) “A further aspect of the incentive value of copyright has to do with practicalities. Copyright law only stipulates the copyright standard and the rights that protect authors, but authors almost always have to contract with an intermediary or distributor in order to market their work and it is the terms of the contract between them that determine the eventual financial reward to the author….Research on artists’ total earnings including royalties shows earnings in other occupations and only ‘superstars’ make huge amounts. Copyright produces limited economic rewards to the ‘ordinary’ professional creator.”  
Source: Ruth Towse, “What we know, what we don’t know and what policy makers would like us to know about the economics of copyright”, Review of Economic Research of Copyright Issues, 2011, Vol 8 (2), pp. 101-120.
A review of the Price Waterhouse Coopers Global entertainment and media outlook: 2012-2016 (http://www.pwc.com/outlook) shows that for 2012, many digital media revenues, as a percentage of total sector revenues, remain extremely small.  For example: 
-	Consumer & educational book publishing in Australia – digital being 2% of total revenue
-	Filmed entertainment in Australia – digital being 3% of total revenue
-	Newspaper publishing in Australia – digital being 0.2% of total revenue
Only in the case of music is this trend significantly positive, where digital represents around 20% of total revenue.
(b) affects the introduction of new or innovative business models;
According to Towse (2011), "Economists have long had concerns that copyright has a moral hazard effect on incumbent firms, including those in the creative industries, by encouraging them to rely on enforcement of the law rather than adopt new technologies and business models to deal with new technologies".  
ICT and broadband in particular enhances productivity and is a key source of economic growth, job creation, and new business creation. Consequently, understanding the economic impact of ICT and in particular indirect and induced effects on the overall economy that go beyond the direct stimulus caused by ICT investment is crucial. Some important economic effects of ICT that have been identified are: 
-	Improvements in human capital: ICT creates demand for higher skilled labor and eliminates simple and tedious tasks.
-	Multifactor productivity growth, which includes the impact of intangible investments such as organizational changes, new distribution and production processes, and new methods of doing business related to the use of ICT technology.
-	For every 10 percentage point increase in broadband penetration the isolated economic effect on GDP growth is around 1% of GDP, with estimates varying between 0.5% - 2%.
-	For every 1,000 additional broadband users, around 80 jobs are created, with estimates varying between 20 and 130. Doubling the average attained broadband speed for an economy increases GDP by 0.3% points.
A vital link exists between the economic impact of broadband described above and the availability of digital content (figures 2 and 3 below) i.e. that being the mass adoption, not just mere rollout – of ubiquitous high-speed broadband services. Supply side policies that promote high-speed broadband roll-out are not enough – since indirect and induced economic effects of broadband are depend on the adoption and innovative use of broadband. Consequently, sound demand-side broadband drivers need to be in place, these include:
-	increasing economies of scope; i.e. expanding digitization of trade in goods and services including digital creative works,  
-	increasing the scale of economies; i.e. the geographic size of the borderless digital market, 
-	lowering transaction costs, 
-	increasing personalization of services according to individual preferences and purchasing power, and;
-	establishing trusted relationships between creators, innovators, service providers and end users.
References:  http://www.ericsson.com/news/1550083
http://www.ericsson.com/res/docs/2012/networked-society-city-index-report-part-3.pdf
(c) imposes unnecessary costs or inefficiencies on creators or those wanting to access or make use of copyright material; 
The Internet has created a highly interconnected environment, where accessibility of digital content has been improved greatly over previous distribution methods.  However, the ability to lawfully access this digital content over the Internet remains a challenge today.  According to DigitalEurope, “In some instances, this is the result of the rights holders’ unwillingness to authorize a particular use.  However, in most cases, it is simply the unavailability of simple, user-friendly licensing that makes authorized use challenging…with both rights holders and users being losers in this scenario…”  
In general, the simplification of current licensing regimes is expected to improve the availability of digital copyright material, whilst at the same time decrease the administrative complexity and cost of securing licenses.  As a case in point, the UK Hargreaves Report recommends the establishment of a digital copyright exchange to reduce the transaction costs of digital rights administration.
References: 
Digital Europe, EC Green paper on the online distribution of audiovisual works in the EU: opportunities and challenges towards a digital single market, Nov 2011.
Prof Ian Hargreaves, Digital Opportunity, May 2011 <http://www.ipo.gov.uk/ipreview-finalreport.pdf>
 
(d) places Australia at a competitive disadvantage internationally.
Australia is investing significantly in a national broadband network to lay the foundation of Australia’s digital economy over the coming decade.  Without proactively removing barriers to digital content and service uptake, we risk falling behind the rest of the world when it comes to actually accelerating our transition to the digital economy. 
Furthermore, ongoing copyright reforms will be critical to advancing Australia’s transition to a knowledge-based or digital economy.
Some relevant challenges currently being faced by the EU are documented in the European Commission’s Digital Agenda “Legal analysis of a Single Market for the Information Society (SMART 2007/0037)”.  
1)	“Exhaustion principle applying only to physical media – Article 4 of the Copyright Directive stipulates that the exhaustion principle applies to physical media ("original of a work or copies") incorporating the protected work. Recitals 28 and 29 further explain that "the first sale principle of the original of a work or copies thereof by the right-holder or with his consent in the Community, exhausts the right to control the release in the Community of a work incorporated in a tangible tool". This wording limits the principle of exhaustion to tangible goods only, excluding on-line services and intangible goods that incorporate digital content.”  (p 15) 
2)	“Broadness of reproduction rights – The reproduction rights included in the Copyright Directive have been criticised as being overly broad and overlapping with the right of communication to the public. 
Nevertheless, the reproduction right and the right of communication to the public are strictly separated in most contracting processes. For example, in order to license online music, most online forms of dissemination require the simultaneous clearance of both rights. This significantly complicates the licensing process.  
The broad scope of the reproduction right practically extends to all parties involved in the dissemination and use of the online digital content. This way, the right of reproduction covers any use of a work or other subject matter, even where "similar acts of use in the analogue world (such as receiving a television signal or reading a book) would fall well outside the scope of what intellectual property aims to protect".
The exception introduced by article 5.1 of the Copyright Directive has set some limitations to the reproduction right, by imposing an obligatory exception for transient and incidental reproduction acts. 
However, this exception does not alleviate the overlap of the reproduction right with the right of communication to the public and the right of making available to the public. 
The extensive scope of the reproduction rights expands liability for copyright infringement to more parties, so that – compared to analogue works – more authorisation actions are required for the use of digital content. This could prevent parties in the Single Market from engaging in acts in the online environment, while the same acts would not be restricted in the offline environment. As a result, business ventures dealing with digital content will require more time and money to acquire all necessary permissions.
Source:  http://ec.europa.eu/information_society/newsroom/cf/item-detail-dae.cfm?item_id=7022, Chapter 05 “Digital content”.

1.2	Guiding principles for reform
Question 2. What guiding principles would best inform the ALRC’s approach to the Inquiry and, in particular, help it to evaluate whether exceptions and statutory licences in the Copyright Act 1968 (Cth) are adequate and appropriate in the digital environment or new exceptions are desirable?
The policy and legislative outcome should stimulate the growth of legal digital media services to make sure that Australian consumers have timely access to legal and attractive digital content.    
The enforcement-based approach to digital copyright and ISP disconnection after ‘three strikes’ in France, known as HADOPI, was declared by the French Culture Minister in August 2012 having failed to improve availability of legal content and also declared as excessively costly to administer. 
About Ericsson Consumerlab
Ericsson Consumerlab is an integral part of how Ericsson understands consumer needs, and through our our daily interactions with customers, we also have a thorough understandingof the information and communications technologies  (ICT) market, technology and business models, product management, marketing and strategy.
This combination of both consumer and ICT understanding is unique and forms the basis for our credibility and integrity. We understand consumers’ drivers and barriers for new products and services.  
Our insights come from a global research programme. Every year, we interview 100,000 people in more than 40 countries and 15 megacities, statistically representing the views of 1.1 billion people. We spend hundreds of hours in in-depth interviews and focus groups with consumers from different cultures. We cooperate with external research institutes to secure unbiased input. Our research covers general market and consumer trends as well as in-depth insights into specific areas.
Key Consumerlab insights relevant to ALRC guiding principles
Ericsson ConsumerLab research indicates that there is a telling point of difference when we look at access to unlawful file sharing across different markets.  In the US where viewers have access to a broad range of new released legal content, only 14% of US respondents indicated they used file sharing, compared with 33% in Australia. In other words, Australians are 2.4 times more likely to use file sharing compared to viewers in the US.  In Australia 33% of respondents say they download from file sharing sites, 32% from iView, followed by Apple (22%), Foxtel (14%) and Telstra Bigpond (13%). Whereas US results show that streamed content provider Hulu (53%) and Netflix (53%) are the first choice for content, and by comparison, file sharing is one of the lowest 14%.
“As social media use expands without regard to countries’ borders, so does discussion about culture and entertainment. National copyright laws designed to reward territorial discrimination are ill-suited to a connected world. Consumers begin discussing new episodes of their favorite TV shows as soon as they are aired. In fact, consumers are increasingly discussing the TV and video content they are watching using social media such as Facebook and Twitter. The ConsumerLab TV and Video Consumer Trends report 2012 shows that as many as 42 percent of those who chat and use social media while watching TV, communicate online about the TV shows they are currently watching. There is therefore little or no acceptance of having to wait. Once TV shows and movies are available somewhere, consumers expect them to be accessible everywhere.”
References:  Ericsson ConsumerLab, TV & Video Report 2011, Feb 2012 http://www.ericsson.com/au/news/120221_consumerlab_254740123_c
References: Ericsson Consumerlab: TV & Video – Changing the Game, Oct 2012 http://www.ericsson.com/res/docs/2012/consumerlab/consumerlab-tv-video-changing-the-game.pdf
http://www.ericsson.com/res/site_AU/docs/2012/ericsson_tv_video_study_market_insights_australia_summary.pdf
Towse (2006) states that “copyright law is not symmetric in its effects on the ‘author’ (the primary creator of content) and the ‘publisher’, the company in the creative industry that markets their work (record label, broadcaster, film studio, etc).  Given that most authors (and we can also include performers) are not in a position to market their own work, they have to deal with publishers to get their work to market and these companies take a large share of the profits. Royalty payments and other remuneration from copyright take only a small share of revenues. Secondly, how much these companies charge for the creative products they sell is not regulated (except under competition law if they have a large market share), so the ‘tax’ they levy is up to them. The maxims of public finance tell us that a tax should be fair and efficient. Copyright can in fact be seen as a sort of social contract: ‘we the public agree to this law to ensure creative cultural development for the benefit of our grandchildren and the price we pay is that our cultural products cost more’.
Many people feel this contract has been broken by the excessive government support for the demands for ever stronger copyright law by the creative industries and the excessive share that they take of the spoils. This is leading many scholars from all disciplines to call for a halt to the apparently ceaseless onward march of copyright and even for an end to copyright.”  
Source: Towse, “Copyright and Creativity: An application of cultural economics”, 2006. http://ssrn.com/abstract=1144327

1.3	Caching, indexing and other internet functions
Question 3. What kinds of internet-related functions, for example caching and indexing, are being impeded by Australia’s copyright law?
No Comment
Question 4. Should the Copyright Act 1968 (Cth) be amended to provide for one or more exceptions for the use of copyright material for caching, indexing or other uses related to the functioning of the internet? If so, how should such exceptions be framed?
No Comment

1.4	Cloud computing
Question 5. Is Australian copyright law impeding the development or delivery of cloud computing services?
Current Australian copyright law requires individual copies of content to be stored, which is very much linked to the physical and traditional economy.  In a digital economy, where cloud computing enables mass volume storage, it remains far more efficient and cost-effective for digital content to be stored once and referenced by many to facilitate access.  This reality must be acknowledged when it comes to driving efficiencies within the digital economy.
Further, copyright law should be technology neutral to avoid discriminating against particular technology choices for digital copyright material.  The way in which a lawful private copy of digital content is made should be up to the consumer and based on his or her individual needs rather than the law specifically dictating a particular IT architecture or technology for doing so.  In other words, if a user wishes to store legally obtained content on a hard drive, set-top-box or in a local cloud storage service, this should not be limited by copyright law and should be left to the consumer to decide.   
Question 6. Should exceptions in the Copyright Act 1968 (Cth) be amended, or new exceptions created, to account for new cloud computing services, and if so, how?
Yes, refer to response to Question 5.

1.5	
Copying for private use
Question 7. Should the copying of legally acquired copyright material, including broadcast material, for private and domestic use be more freely permitted?
Ericsson believes that the definition of a private sphere should include the domestic circle and should not be limited to a singular physical entity. Ericsson believes that an up to date copyright regime that is respected and accepted by the main stream population of a society must meet reasonable expectations of an average/main stream citizen and in this context the reasonable expectation is that an average main stream citizen in Australia is a member of domestic circle. Approaching the question from a copyright maximalist view point where the potential consumption is the benchmark may not be the most appropriate.
An up to date copyright regime that is respected and accepted by the main stream population of a society must meet reasonable expectations. Consumers increasingly expect to be able to consume creative content on demand anytime, any device and anywhere. Thus the ability to shift lawfully acquired content within the private sphere is an integral and necessary step of modern consumer behavior. This demand for personalizing media consumption is an inevitable and permanent shift in future mass market consumer behavior as younger generations’ aka digital natives become the mass market.
References: http://www.ericsson.com/res/docs/2011/11_1650_RevB_TV_Video_Consumer_Trends_2011_Global_Version.pdf
http://www.ericsson.com/res/docs/2012/consumerlab/consumerlab-tv-video-changing-the-game.pdf

Question 8. The format shifting exceptions in the Copyright Act 1968 (Cth) allow users to make copies of certain copyright material, in a new (eg, electronic) form, for their own private or domestic use. Should these exceptions be amended, and if so, how? For example, should the exceptions cover the copying of other types of copyright material, such as digital film content (digital-to-digital)? Should the four separate exceptions be replaced with a single format shifting exception, with common restrictions?
Consumers expect to be able to consume digital content across multiple devices today, as there is an increasing trend towards multi-screen consumption of digital print and video media.  Furthermore, the universal accessibility afforded by internet services creates a consumer expectation that this should also be possible with legally acquired copyrighted content also.  The rapid evolution of and introduction of new devices (smartphones, tablets, laptops, smart TVs) means that consumers risk having ‘stranded’ digital content that is not useable on a new device due to incompatibility or potential legacy issues, thereby increasing the cost to consumers who need to purchase additional copies of already licenced material.
Ericsson believes that exceptions should be limited to legitimate acquisitions only of a “right” to consume copyright protected works. An exception should not legitimize illegitimate acquisitions. In addition in the case of “grey areas” the assessment of lawfulness should also include at least the following considerations:
Proportionality is a must
Proportionality is a key factor to consider, both regarding, the probability of committing an incidental infringement, the severity of the infringement (e.g. non-commercial vs. large scale commercial).
Probability of incidental infringements has increased 
The historical development of copyright law has predominantly been to strengthen the rights of economic rights holders by expanding the time-span and scope of the exclusive rights, increasing penalties for infringement and reducing their private costs of enforcement This growth has resulted in greater complexity and hence uncertainty among the general public; all resulting in increased probability of users committing incidental infringements.

Question 9. The time shifting exception in s 111 of the Copyright Act 1968 (Cth) allows users to record copies of free-to-air broadcast material for their own private or domestic use, so they may watch or listen to the material at a more convenient time. Should this exception be amended, and if so, how?  For example:
Consumers are moving away from linear TV towards on-demand behavior, as evidenced by a recent Ericsson ConsumerLab report, which shows a steady consistent decline in viewing of scheduled broadcast TV over the past 3 years.  Furthermore, nearly 60% of consumers surveyed used on-demand TV and video services at least once per week. 
This is partially driven by new expectations created by an ‘on demand’ internet experience, which is influencing consumer expectations globally around non-linear consumption, but also reflective of consumer understanding and adoption of technology to streamline viewing habits to times that suit them. 
Reference:  http://www.ericsson.com/res/docs/2012/consumerlab/tv_video_consumerlab_report.pdf

(a) should it matter who makes the recording, if the recording is only for private or domestic use; and 
No, it should not matter who makes the recording.  The success of the digital economy, enabled primarily by the IT and telecommunications sectors, has been based on sustained and continuous innovation.  This has driven continuous improvement of technologies and services and has provided a competitive incentive for differentiation amongst competing players across different industries.  Therefore, using ICT to simplify or differentiate services or offerings should not be prohibited by law.  
(b) should the exception apply to content made available using the internet or internet protocol television?  
Yes, the exception should apply irrespective of content delivery method or underlying technology.  Ericsson strongly believes that copyright law should adhere to a technology neutral principle, where the basis or an exception should be the purpose rather than the technology itself.
Question 10. Should the Copyright Act 1968 (Cth) be amended to clarify that making copies of copyright material for the purpose of back-up or data recovery does not infringe copyright, and if so, how?
Yes, Ericsson believes that copies for the purpose of back-up or data recovery should be allowed for copyright material.  

1.6	
Online use for social, private or domestic purposes
Question 11. How are copyright materials being used for social, private or domestic purposes—for example, in social networking contexts?
No comment
Question 12. Should some online uses of copyright materials for social, private or domestic purposes be more freely permitted? Should the Copyright Act 1968 (Cth) be amended to provide that such use of copyright materials does not constitute an infringement of copyright? If so, how should such an exception be framed?
No comment
Question 13. How should any exception for online use of copyright materials for social, private or domestic purposes be confined? For example, should the  exception apply only to (a) non-commercial use; or (b) use that does not conflict with normal exploitation of the copyright material and does not unreasonably prejudice the legitimate interests of the owner of the copyright?
No comment

1.7	Transformative use 
Question 14. How are copyright materials being used in transformative and collaborative ways—for example, in ‘sampling’, ‘remixes’ and ‘mashups’. For what purposes—for example, commercial purposes, in creating cultural works or as individual self-expression?
No comment
Question 15. Should the use of copyright materials in transformative uses be more freely permitted? Should the Copyright Act 1968 (Cth) be amended to provide that transformative use does not constitute an infringement of copyright? If so, how should such an exception be framed?
No comment
Question 16. How should transformative use be defined for the purposes of any exception? For example, should any use of a publicly available work in the creation of a new work be considered transformative?
No comment

Question 17. Should a transformative use exception apply only to: (a) non-commercial use; or (b) use that does not conflict with a normal exploitation of the copyright material and does not unreasonably prejudice the legitimate interests of the owner of the copyright?
No comment
Question 18. The Copyright Act 1968 (Cth) provides authors with three ‘moral rights’: a right of attribution; a right against false attribution; and a right of integrity. What amendments to provisions of the Act dealing with moral rights may be desirable to respond to new exceptions allowing transformative or collaborative uses of copyright material?
No comment

1.8	Libraries, archives and digitization 
Question 19. What kinds of practices occurring in the digital environment are being impeded by the current libraries and archives exceptions? 
No comment
Question 20. Is s 200AB of the Copyright Act 1968 (Cth) working adequately and appropriately for libraries and archives in Australia? If not, what are the problems with its current operation?
No comment
Question 21. Should the Copyright Act 1968 (Cth) be amended to allow greater digitisation and communication of works by public and cultural institutions? If so, what amendments are needed?
No comment
Question 22. What copyright issues may arise from the digitisation of Indigenous works by libraries and archives?
No comment

1.9	Orphan works 
Question 23. How does the legal treatment of orphan works affect the use, access to and dissemination of copyright works in Australia?
No comment
Question 24. Should the Copyright Act 1968 (Cth) be amended to create a new exception or collective licensing scheme for use of orphan works? How should such an exception or collective licensing scheme be framed?
No comment

1.10	Data and text mining 
Question 25. Are uses of data and text mining tools being impeded by the Copyright Act 1968 (Cth)? What evidence, if any, is there of the value of data mining to the digital economy?
No comment
Question 26. Should the Copyright Act 1968 (Cth) be amended to provide for an exception for the use of copyright material for text, data mining and other analytical software? If so, how should this exception be framed?
No comment
Question 27. Are there any alternative solutions that could support the growth of text and data mining technologies and access to them?
No comment

1.11	Educational institutions 
Question 28. Is the statutory licensing scheme concerning the copying and communication of broadcasts by educational and other institutions in pt VA of the Copyright Act 1968 (Cth) adequate and appropriate in the digital environment? If not, how should it be changed? For example, should the use of copyright material by educational institutions be more freely permitted in the digital environment?
No comment
Question 29. Is the statutory licensing scheme concerning the reproduction and communication of works and periodical articles by educational and other institutions in pt VB of the Copyright Act 1968 (Cth) adequate and appropriate in the digital environment? If not, how should it be changed?
No comment
Question 30. Should any uses of copyright material now covered by the statutory licensing schemes in pts VA and VB of the Copyright Act 1968 (Cth) be instead covered by a free-use exception? For example, should a wider range of uses of internet material by educational institutions be covered by a free-use exception? Alternatively, should these schemes be extended, so that educational institutions pay licence fees for a wider range of uses of copyright material? 
No comment
Question 31. Should the exceptions in the Copyright Act 1968 (Cth) concerning use of copyright material by educational institutions, including the statutory licensing schemes in pts VA and VB and the free-use exception in s 200AB, be otherwise amended in response to the digital environment, and if so, how?
No comment

1.12	Crown use of copyright material 
Question 32. Is the statutory licensing scheme concerning the use of copyright material for the Crown in div 2 of pt VII of the Copyright Act 1968 (Cth)  adequate and appropriate in the digital environment? If not, how should it be changed?
No Comment
Question 33. How does the Copyright Act 1968 (Cth) affect government obligations to comply with other regulatory requirements (such as disclosure laws)? 
No Comment
Question 34. Should there be an exception in the Copyright Act 1968 (Cth) to allow certain public uses of copyright material deposited or registered in accordance with statutory obligations under Commonwealth or state law, outside the operation of the statutory licence in s 183?
No Comment

1.13	Retransmission of free-to-air broadcasts
Question 35. Should the retransmission of free-to-air broadcasts continue to be allowed without the permission or remuneration of the broadcaster, and if so, in what circumstances?
No Comment
Question 36 Should the statutory licensing scheme for the retransmission of free-to-air broadcasts apply in relation to retransmission over the internet, and if so, subject to what conditions—for example, in relation to geoblocking?
Ericsson supports the use of statutory licensing, as this provides an alternative means for a distributor to acquire rights for retransmission of linear content without the need for a direct licensing agreement with the broadcaster – ie grows the addressable market which is viewed as a positive outcome.
However, expanding this to the Internet may require additional technological means to limit distribution to intended audiences, such as via a closed or managed IPTV environment, or necessitating the use of geoblocking to limit distribution within a licensed geography.
Question 37. Does the application of the statutory licensing scheme for the  retransmission of free-to-air broadcasts to internet protocol television (IPTV) need to be clarified, and if so, how?  
Clarification was established with previous decisions reached by both the Federal Court and the Australian Competition Tribunal, and as a consequence, no further clarification is seen as being necessary for IPTV.
Question 38. Is this Inquiry the appropriate forum for considering these questions, which raise significant communications and competition policy issues? 
Ericsson acknowledges that copyright and the digital economy is a complex issue, however in order to ensure that the various issues and perspectives of all stakeholders can be fully represented and effectively considered by the ALRC as part of this review, it would be beneficial to also consider:
1)	Undertaking of a joint session between the ALRC, ACCC and other relevant interested parties (ie workshop) to further explore key issues and/or
2)	Closed discussion sessions with interested stakeholders, to enable broader elaboration of any additional concerns that might lie outside the Inquiry response framework
One recent example worth noting, held by Bournemouth University in the UK, involved a public forum including panel and roundtable discussions between policy makers from the Intellectual Property Office, stakeholders from creative industries and academics from multiple faculties with copyright expertise.  
Reference: http://www.cippm.org.uk/news/2012/june/ne001-esrc-social-science-festival.html
Question 39. What implications for copyright law reform arise from recommendations of the Convergence Review?
A converged approach to media and content regulation must be based on a copyright regime that ultimately facilitates and supports convergence.  In other words, it must be technology neutral, competitive and promote the availability of lawful digital content to end users.
Similarly, the remuneration of copyright holders should be based upon:
-	Actual rather than assumed consumption
-	The type of right(s) being transferred (such as immediate viewing, 24-48hour window viewing, subscription based or purchase to own) and
-	A market price reflected by the particular content based on commercial negotiation
Ultimately, this is how the market should set appropriate prices for goods and services, rather than the law dictating a fair price, potentially creating barriers to digital content and distribution market.
Australia has a unique opportunity to link media convergence reform with copyright reform, which has been missed by many other nations, and therefore provides a strong potential to advance the Australian digital economy.

1.14	Statutory licences in the digital environment
Question 40. What opportunities does the digital economy present for improving the operation of statutory licensing systems and access to content?
Ericsson would like to highlight that statutory licensing is just one tool to approach the issue how to increase the availability of lawful digital (licensed as well exempt) content. Other tools that strive to achieve similar outcomes are:
•	Introduction of a Digital Copyright Exchange
•	Increased transparency and competition of indirect licensing e.g. Collecting Societies
•	Prohibition of Windowing practice
•	Revision of the exhaustion principle, e.g. introduction of technology neutral exhaustion principle
Ericsson, agrees that statutory licensing should be reviewed, but that the review should not be limited in its purpose to promote the digital economy by limiting its investigation to one regulatory instrument. Rather, Ericsson encourages the review to also investigate all other available option and their potential to advance the Australian Digital Economy.
Question 41. How can the Copyright Act 1968 (Cth) be amended to make the statutory licensing schemes operate more effectively in the digital environment—to better facilitate access to copyright material and to give rights holders fair remuneration?
No comment
Question 42. Should the Copyright Act 1968 (Cth) be amended to provide for any new statutory licensing schemes, and if so, how?
No comment
Question 43. Should any of the statutory licensing schemes be simplified or consolidated, perhaps in light of media convergence, and if so, how? Are any of the statutory licensing schemes no longer necessary because, for example, new technology enables rights holders to contract directly with users?
No comment
Question 44. Should any uses of copyright material now covered by a statutory licence instead be covered by a free-use exception?
No comment

1.15	
Fair dealing exceptions 
Question 45. The Copyright Act 1968 (Cth) provides fair dealing exceptions for
the purposes of: (a) research or study;  (b) criticism or review; (c) parody or satire; (d) reporting news; and  (e) a legal practitioner, registered patent attorney or registered trade marks attorney giving professional advice. What problems, if any, are there with any of these fair dealing exceptions in the digital environment?
No comment
Question 46. How could the fair dealing exceptions be usefully simplified?
No comment
Question 47. Should the Copyright Act 1968 (Cth) provide for any other specific fair dealing exceptions? For example, should there be a fair dealing exception for the purpose of quotation, and if so, how should it apply?
No comment

1.16	Other free-use exceptions
Question 48. What problems, if any, are there with the operation of the other exceptions in the digital environment? If so, how should they be amended?
No comment
Question 49. Should any specific exceptions be removed from the Copyright Act 1968 (Cth)? 
No comment
Question 50. Should any other specific exceptions be introduced to the Copyright Act 1968 (Cth)? 
No comment
Question 51. How can the free-use exceptions in the Copyright Act 1968 (Cth) be simplified and better structured?
No comment

1.17	Fair use
Question 52. Should the Copyright Act 1968 (Cth) be amended to include a broad, flexible exception? If so, how should this exception be framed? For example, should such an exception be based on ‘fairness’, ‘reasonableness’ or something else?
No comment
Question 53. Should such a new exception replace all or some existing exceptions or should it be in addition to existing exceptions?
No comment
1.18	Contracting out
Question 54. Should agreements which purport to exclude or limit existing or any proposed new copyright exceptions be enforceable?
Contract law and technical standards should not as a principle be allowed to override statutory copyright exceptions. Where private copy is part of a commercial licensing arrangement and goes above and beyond statutory private copy exceptions, Ericsson believes that contractual arrangement and standards should be allowed to assure innovative licensing arrangements.
Ericsson would also like to highlight:
In the case of TPM and DRM as well, the future policy principal should stipulate that, any statutory protective provisions against circumvention technologies that have been introduced or will be introduced into copyright legislation or other statues in Australia must be based on technology neutral and interoperable or open standards principles. Hereby, this principle ensures that end-users can access and move lawfully their lawfully acquired content between devices; cloud services and media service providers. Hence, legal provisions protecting the use of DRM or prohibit the use of circumvention technologies must only protect technologies that are:
- Built on an interoperable set of proprietary standards or consist of TPM/DRM technologies that are based on open industry-wide standards.
- Must not limit where applicable individuals’ statutory right to make private copies of works for private use. 
Question 55. Should the Copyright Act 1968 (Cth) be amended to prevent contracting out of copyright exceptions, and if so, which exceptions?
No comment.
Ericsson looks forward to continued engagement with the ALRC on digital economy related matters in the future, and is pleased to be contacted in relation to any points raised in this submission. 

Yours sincerely, 

Kursten Leins
General Manager, Government Affairs 
Ericsson Australia and New Zealand

Phone	+ 61 3 9301 6161
Mobile	+ 61 408 878 471
Email	kursten.leins@ericsson.com