Copyright Legislation Amendment (Fair Go for Fair Use) Bill 2013

This Bill introduces four reforms to Australian copyright law to remove discrimination to the visually impaired, protect Australia's libraries, digital innovators and educational institutions, prevent Australians paying higher prices for software, games and music and to adopt the US fair use model which allows the law to respond to new technology that was not, or could not, be foreseen by parliamentarians.

Australian copyright law is out of date, inflexible, unnecessarily complex, imbalanced and virtually blind to digital communication technology such as smartphones used by three out of four Australian adults.

Until our copyright laws were last updated in 2006, it was illegal for Australians to use a videocassette recorder (VCR). The absurdity of this was obvious given the widespread use of this technology in education and entertainment. While the law caught up with the video age eventually, advances in technology have served to make our laws nonsensical once again.

Current anomalies in Australian copyright law include:

• Operating a search engine in Australia risks infringing copyright;
• Libraries can make copies of a work in order to replace it but only after the work is stolen or lost.
• Australian schools are spending millions of dollars to use content that is freely available online such as free tourism maps or fact sheets for treating head lice;
• It is illegal to remove digital locks from a legally purchased e-book in order to read it on a different device or back it up;
• Many Australians buy CDs not knowing that it is illegal to listen to them on their smartphone and their tablet.
• Music can be copied from a CD to a tablet but not a purchased DVD;
• Playing an online video in a presentation to a group is illegal;
• Comedians can use material in parody or satire but artists can't use the same material for art.

When Gutenberg invented the printing press, it was banned for periods of time in some parts of Germany. When libraries were created, the publishing industry feared authors would starve and the book business would die if people could read for free. What soon became apparent is that libraries sharing culture created incentives for further learning, writing and the creation of more culture. Similar types of fears and predictions were aroused by the invention of the photocopier and video cassette recorder.

The internet is all of these things - the greatest library in human history, proliferating and recording information, sharing culture and innovation while providing opportunities to collaborate and communicate despite location. Shutting down the printing presses didn't stop the desire to read and learn. Locking up content that can be shared online and shutting down technology isn't going to either.

The Greens believe that the potentials, benefits and gifts of the online library can be available safely with privacy and human rights and civil liberties intact, as well as copyright preserved for commercial copying, but only if we pay very careful attention to the balance that is being struck between these freedoms and our obligations as citizens. We are currently not getting the balance right.

Technical Protection Measures (TPMs)

Technical Protection Measures (TPMs) lock up content, denying visually impaired people the ability to take advantage of audio editions of e-books (making text to speech) or converting a text book into braille or using voice synthesiser to convert a digital article. Overcoming the barriers to sharing published works across borders is under negotiation at the World Intellectual Property Organisation Treaty to Facilitate Access to Published Works by Visually Impaired Persons and Persons with Print Disabilities. This Bill seeks to remove current practices in Australian law that discriminate against the visually impaired.

This Bill provides an exception so that TPMs can no longer prevent visually impaired people from enjoying audio books in accessible formats. It allows service providers - libraries, institutions and those providing assistance to the visually impaired, including online services, to buy content and make it available for the visually impaired in a format to be enjoyed for private and domestic use.

The Bill also requires regulation to ensure that schools, universities and libraries assisting the visually impaired are given an exception in the Copyright Act when that content is lawfully acquired by or on behalf of a person with visual impairment.

Safe Harbour

Currently Australian universities, libraries, schools, digital innovators, cultural institutions and IT companies provide internet services without the benefit of the same safe harbour as their equivalents overseas. A Safe Harbour would allow content provide to make information and culture available online and will be protected by common activities - transmitting data, caching, hosting and referring users to an online location - where service providers do not control, initiate or direct the users' online activities are currently not covered by the scheme.
Having had time to evaluate the changes to copyright law made in 2006, and the disparity in safe harbour schemes provided for Australia in the US Free Trade Agreement, the government recognised the need to address the safe harbour issue in 2011 through initiating an inquiry. The discussion paper proposed the expansion of the range of service providers to be protected, however the government never reported in response to submissions.

This Bill acts to protects Australia's public and other non-profit educational institutions from being liable for how people might use the content made available through their services. It adapts the model adopted in the US in the US Digital Millennium Copyright Act with a simple and technologically neutral definition of a service provider. It also details the responsibilities for public or non-profit institution to promote and comply with copyright law, but recognises limits in the extent to which the institution is responsible for the behaviour of persons utilising their services.

Geocode mechanisms

Geocode mechanisms serve to enforce different prices and associated conditions of use of content by Australian consumers. Australians are paying high prices - much higher prices - for some IT hardware, software, computer games, music and video products due to Geocode mechanisms. This is having a negative impact on Australian businesses and citizens who are limited in engaging with international markets.

This Bill addresses this serious problem of geographic market segmentation is designed to enforce different prices for e-books, films, games, music and recordings for people in Australia. It amends the phrase 'acquired outside of Australia' because consumers downloading content in Australia may not fall under the exclusion 'acquired outside of Australia'. A general phrase is inserted: 'content made available by, with the permission of, or on behalf of, the owner or the exclusive licensee of the copyright in a work or other subject-matter.'

Fair Use

A Fair Use reform would shift Australian law to the US model. Such a technically neutral doctrine would allow the law to respond to developments in technology, with the acceptability of new uses of content and technology determined when a dispute arises.

In the Australian system, every new use or technology is forbidden until Parliament gets around to saying otherwise. Under the fair use model, decisions are not made on specific technology through legislation but on the nature and market effect of use of copyright works.

A Fair Use doctrine allows people developing new technologies or who a reproducing and transforming culture to make an assessment of whether their use is fair and if they are challenged they have to defend their use or negotiate terms with the copyright holder. The alternative is a less flexible rule based system where, people with existing lobbing power may have an undue advantage in achieving new exceptions.

This Bill adapts aspects of the US Copyright Act, repealing Section 200AB of the Australian Act.

The arguments for and against the fair use doctrine are being canvassed and examined through the Australian Law Reform Commission inquiry and discussion paper. The Greens believe that testing how fair use might translate to the Australian legal system is worth beginning in parallel to that process.

Copyright reform is needed to remove discriminatory barriers that impact the visually impaired or force Australians to pay more for no good reason, to protect our learning and cultural institutions and provide fair rules, fair process and fair opportunities to defend use of copyrighted material.

Australian laws cannot continue to migrate assumptions about copyright from the printed or analogue age which is rapidly passing as we enter the digital age.

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