3 December 2012

The Executive Director
Australian Law Reform Commission
GPO Box 3708
SYDNEY NSW 2001

Email:  copyright@alrc.gov.au

Dear Sir/Madam
SUBMISSION: COPYRIGHT AND THE DIGITAL ECONOMY ISSUES PAPER
The Australian Association of National Advertisers (AANA) provides this submission in response to the ALRC’s Issues Paper on ‘Copyright and the Digital Economy’.
As the peak industry body, AANA has represented national advertising for over 80 years. It represents the common interests and obligations of companies across all business sectors involved in the advertising, marketing and media industries.
AANA serves to protect the rights of consumers in ensuring advertising and marketing communications are conducted responsibly, including through its development and administration of industry cods and the self-regulatory system.
The advertising, marketing and media industry plays a fundamental economic role in society and contributes in excess of $30 billion to the Australian economy annually. It is the driver of consumer choice and, by promoting competition, helps consumers get better value for money. It enables innovation to be brought to market and stimulates economic growth and jobs. It provides substantial funding to support media and a variety of media content.
As the national representative of brands in marketing and communications, AANA is concerned with the protection of the brand’s creative marketing and communications content.  AANA is of the view that the current provisions of the Copyright Act 1968 are adequate in their ability to protect the rights of the content creator/rights holder.  AANA believes that any commercial or non-commercial, private or transformative use is already addressed by the existing provisions, in particular the exceptions delivered by the fair dealing provisions.
Copyright is an issue of key concern to our members, giving protection to the ways in which their marketing and communications can be used.
Introduction
AANA acknowledges the opportunities that the digital economy brings to creators, owners and users of content.  In relation to the current review of copyright law, AANA is specifically concerned with three matters raised in the Issues Paper: 
•	online use for social, private or domestic purposes;
•	transformative use; and
•	fair dealing.  
Online use for social private and domestic purposes
AANA notes that, in relation to the online use for social private and domestic purposes, the review focuses on the uploading and sharing on the internet of non-commercial ‘user-generated content’ including in social networking.   
Options to extend the current fair dealing exceptions to provide for greater freedoms for user-generated content are not acceptable in our view.  Rather, the protection of the brand’s content is our primary concern and this is already covered by the current provisions. 
Any extension of these provisions along the lines of the US fair use doctrine would extend the ability to use brand content in ways for which it was not originally intended and this could result in damage to the reputation of the brand.
Transformative use
The Issues Paper states that ‘transformative’ refers to works that transform pre-existing works to create something new, such as in sampling, remixes and mashups. These uses may be either commercial or non-commercial.  The AANA acknowledges technical advances in the digital space enables content to be integrated into new works.  However, we seek to protect the integrity of our members’ brands.  
In this case, AANA does not support the extension of the Copyright Act 1968 to permit transformative works as this could result in damage to the reputation of our members and their brands. Further, the current fair dealing provisions are, in our opinion, adequate as they permit uses of content for a range of purposes, some of which may include transformative use.
The inclusion of any further exceptions in the Copyright Act 1968 to permit private, non-commercial transformative uses would not, in our view, preserve the balance in copyright law between interests of creators and users, as suggested by the Copyright Council Expert Group and referenced in the Issues Paper (p38).   
AANA is of the view that such an exception has the potential to lead to the publication of transformative works via social networks that could parody the original brand content and result in commercial harm to the brand and its owner. What starts out as a private exercise can, by virtue of the kind of technological advances being considered by this review, result in world-wide exposure that far exceeds the original intent of the transformative use of the content.
Fair dealing/fair use
The current fair dealing exceptions are, in AANA’s view, adequate and appropriate in the digital environment.  The AANA does not agree with any expansion of these exceptions to a system based on the US concept of fair use, especially if that exception relates only to economic disadvantage (ie ‘the effect of the use upon the potential market for or value of the copyrighted work’, as per the US Copyright Act). AANA argues for the continuation of a more narrow interpretation of fair dealing in order to protect the copyrighted works of its members.
Thank you for the opportunity to provide this submission.  Please do not hesitate to contact us directly if you have any questions or comments.
Yours sincerely

Alina Bain
Acting Chief Executive Officer, AANA