Copyright and the Digital Economy Issues Paper 

Submission from the Australian Communications Consumer Action Network to the Australian Law Reform Commission

   

November 2012

About ACCAN 
The Australian Communications Consumer Action Network (ACCAN) is the peak body that represents all consumers on communications issues including telecommunications, broadband and emerging new services. ACCAN provides a strong unified voice to industry and government, working towards availability, accessibility and affordability of communications services for all Australians. 
Consumers need ACCAN to promote better consumer protection outcomes ensuring speedy responses to complaints and issues. ACCAN aims to empower consumers so that they are well informed and can make good choices about products and services. As a peak body, ACCAN will activate its broad and diverse membership base to campaign to get a better deal for all communications consumers. 
Contact:
Jonathan Gadir, Senior Adviser – Policy and Research

Suite 402, Level 4
55 Mountain Street
Ultimo NSW, 2007
Email: jonathan.gadir@accan.org.au
Phone: (02) 9288 4000
Fax:  (02) 9288 4019
TTY: 9281 5322

 
Introduction

ACCAN recognises that there are many public interest questions being considered in this review. In accordance with our role, in this submission we address key points that are central to communications consumers.

Guiding principles for reform
The law should recognise and permit consumer activities which do not harm creators/owners
Currently multiple everyday activities without any commercial implications are likely to breach copyright. Indeed, many consumers would be surprised to learn they were breaking the law by privately copying and recording in a way that has been commonplace for decades and in using devices that have been marketed to them vigorously. 
It has been calculated that many billions of dollars in damages could theoretically be payable if all rights holders were to enforce their rights to the maximum possible extent. We are therefore in a position of having statutory provisions which can only continue to exist because they are largely not enforced.
For consumer-related provisions of copyright law to have some measure of public acceptance and respect, they should reflect mainstream values about what is fair. In the era of user-generated content, social media and smartphones, in which there is ubiquitous online publishing and manipulation of videos, photos, words and music, it is more important than ever that clear rules exist that consumers can follow. 
Accordingly, ACCAN believes that copyright rules should not criminalise people or place people at risk of financial penalties when they engage in these kinds of activities or when they record (time-shift) or copy (format-shift) for uses which do not impede commercial exploitation by copyright holders. 
In essence, copyright law must not prohibit consumer activities or individual self-expression that has no or negligible harmful effect on copyright owners. 
Our favoured approach is therefore a broad fair dealing or fair use exception designed to allow fair use. This could be coupled if necessary with a broad exception allowing for personal and private uses, particularly format-shifting.
Exceptions represent legitimate rights; Rules need to be simple and relevant for the online era
Exceptions to copyright must be drafted so as to protect the copyright holder from real harm without unnecessarily regulating access to and use of content. We believe that the exceptions should be framed to represent equal legal rights alongside the rights of the copyright holder. They should accordingly not carry conditions and qualifications that make them difficult or impossible to use, or difficult for the public to understand. Laws should apply equally to all technologies and to all copyright subject-matter.
Copyright law must not affect access to communications
Access to the internet is now a practical necessity in everyday life. Many government and business services are delivered in a way that assumes universal access.
Both internet and phone services are often delivered over the same infrastructure and bundled into one account. This will increasingly be the case as the NBN rolls out.
Accordingly, penalties for copyright infringement must not result in any person being disconnected from a phone or internet service. Such a penalty is disproportionate as it denies access to essential services including emergency services.
Copyright law must not result in discrimination against people with disabilities
Copyright rules affect the ability of people who are blind or vision-impaired to have the same level of access to printed material that the rest of us enjoy. For example, overly restrictive provisions on access to books and articles published electronically or scanned and then delivered via online and electronic formats is a central concern for ACCAN.

Copying for private use 
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?
ACCAN’s view is that repealing the technology-specific format shifting exceptions and replacing them with a broad fair dealing or fair use exception and, also, if necessary, a broad exception for personal and private uses would ensure that Australian consumers are granted the rights they need to make all fair uses of copyright material both in relation to current and future technologies and all types of copyright subject-matter.
ACCAN supports a broad, flexible exception that can take into account the extent, if any, of the real harm to the creator/owner.
As the Australian Digital Alliance (ADA) points out in its submission, laws that appear to consumers to unduly interfere with their enjoyment of works in ways viewed as non-harmful, are unlikely to be respected. Indeed, the present jumble of format shifting exceptions, which are incoherent from a public policy standpoint, and which are becoming technologically irrelevant, bring copyright law into public disrepute.
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: (a) should it matter who makes the recording, if the recording is only for private or domestic use; and (b) should the exception apply to content made available using the internet or internet protocol television?

A private or domestic use time shifting exception should be technology-neutral and apply equally to internet or internet protocol television. There should be a single standard applied, and it should not matter whether the recording is being physically or digitally made on the consumers’ own equipment or remotely by another party on equipment owned by another party.
The recent Full Federal Court decision on the Optus cloud-based personal video recording service, TV Now, has created a potential obstacle to Australian consumers being offered the same range of quality, cloud-based recording services that are on offer to consumers elsewhere.
It is evident from this decision that the current private or domestic use exception needs to be replaced with a fair dealing or fair use provision that is technology-neutral and that allows for the increasingly diverse ways that the public might consume and arrange content for their private enjoyment. The effect of such a provision would therefore be to recognise what consumers are already doing. 
Conversely, maintaining the status quo will not hold back the technological tide. We note that following the Full Federal Court decision, Optus’ TV Now and similar services have ceased operating in Australia. The result will be that Australian consumers will use providers located offshore beyond the reach of Australian court orders, and Australian consumers will likely be acquiring such services without the consumer protections afforded by Australian law.
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?
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?
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?

Much online sharing of copyrighted material increases the visibility, popularity and potential market for that material. Such uses are predominantly non-commercial, yet are nevertheless considered to infringe copyright. 
ACCAN agrees with the analysis of the Australian Digital Alliance (ADA) in its submission that social networking activities are now ubiquitous and it is beyond the capacity of any law reform measure to wind back the clock and prevent activities consumers now see as morally legitimate.
We therefore advocate a broad fair dealing or fair use exception and, also, if necessary, a broad exception for personal and private uses that would allow for personal online uses, including transformative uses.
We do not see an advantage in having a separate exception for transformative uses as this creates an enormously difficult and unnecessary definitional problem about what constitutes transformative use. There is little to be gained from having courts applying themselves to assessing ‘mash-ups’ or a ‘re-mixes’ to ascertain whether they fall within a tightly-worded exception, when the real issue is whether the use is fair and the extent of the harm to the creator/owner.
Importantly, if there were to be a separate exception specifically for private or domestic purposes, the ADA’s analysis of the pitfalls involved in using the words ‘private’, ‘domestic’ or ‘personal’ in framing such an exception should be taken seriously. It would be undesirable for such an exception to be enacted, with the intention that it encompass, for example, social media, only to see it effectively annulled by courts which may engage in definitional exercises which find social media not to be private, domestic or personal.

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?

It is undesirable for there to be additional exceptions which create new and complicated obstacles for everyday consumer activities. The proposed exception in relation to orphan works, described as a ‘non-commercial use exception for natural persons’ would create a carve-out from the broad fair use or fair dealing exception and/or broad private use exception of the kind we prefer.
We do not support proposals for exceptions like this which, for non-commercial uses would impose such unrealistic obligations on consumers as conducting a ‘diligent search’ and lodging a notice with a collection society. The broad fair use/fair dealing exception and if necessary a broad private use exception should cover orphan works as it would for other works.

Other free-use exceptions – section 200AB and people with disabilities

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? 

ACCAN believes our laws must allow for printed material to be made available in electronic versions that are accessible for people who are blind or vision-impaired, and to allow such electronic versions to be created and held without fear of penalty.
Accordingly, there should be a wide exception to copyright allowing people to create and hold accessible electronic versions free from onerous obligations and legal uncertainty.
The current exception in s 200AB for use by or for people with disabilities, enabling access to a copyrighted work in a suitable format, is confusing and vague. The circumstances must be “a special case”, defined by reference to the TRIPS Agreement, Article 13, which says: 
Members shall confine limitations or exceptions to exclusive rights to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the right holder.” 
In our view it is preferable that this already very targeted exception not be further qualified as the range of real world circumstances in which it applies is already extremely confined. 
The law as it stands does not give sufficient certainty. This is problematic as few if any organisations assisting people with disabilities are in a position to understand the wording of the law or assess whether what they want to do conflicts with “a normal exploitation” of the work. 
We also are concerned by the inconvenience and expense imposed on university students with disabilities as documented in the submission of the Australian Digital Alliance (ADA). This is a result of the requirement under current rules for electronic copies of books and articles to be destroyed by a university library after being provided to a user, regardless of the likelihood of other students requiring the same material.
Such restrictive rules as we have described may also be inconsistent with a commitment to ending disability discrimination as embodied in the Disability Discrimination Act and the UN Convention on the Rights of Persons with Disabilities.