Tuesday, August 21, 2012

Copyright and the Digital Economy: Huge Review Underway

A few months ago Federal Attorney-General Nicola Roxon initiated a very comprehensive review of the adequacy of Australia's copyright law in dealing with the serious challenges being wreaked on the creation and usage of content by the digital revolution.

The Australian Law Reform Commission (ALRC) has been given this huge job, and is required to report by 30 November 2013. It has just released the Issues Paper, which is well worth reading if you are at all interested in copyright. 

This review is so comprehensive it has the potential to profoundly jolt the publishing, music and broadcasting industries out of their current comfort zones. The issues paper makes it quite clear that everything is on the table, principally the fair dealing exceptions and the educational statutory licences, around which much of publishing commercial practice revolves.

There is no doubt in my mind that the ALRC will come up with serious reform proposals, and they won't be in the interest of copyright owners. They will enlarge the scope of user rights. Some of these will be welcome. We shouldn't tolerate a legal regime that outlaws the Down Under flute solo or the Optus Now initiative, in my view. 

We should also welcome a broadening of user rights in copying for social, private and domestic purposes. We shouldn't tolerate the criminalisation of downloading behaviour in response to unreasonable commercial availability controls, pricing and geo-restrictions: everyday crap that angers Australians in particular.

However, extending the rights of educational institutions to exploit content by loosening the existing statutory license provisions is something the industry must vigorously resist. There is, of course, room to clean up some inconsistencies and complexities, but to broaden the fair dealing exceptions so far as to allow free use of much that is now paid for would be a mistake, not to mention extremely costly for the industry. 

And it won't be enough for individual publishers to extend their reliance on specific contracts directly with customers, thus avoiding the free-use exceptions built into the copyright law. The relation between what's allowed or disallowed under law and what the publisher allows or otherwise under contract has always been disputed terrain, and the ALRC has signalled that it has that conflict firmly in its sight.

Of course, this review will only present a list of recommendations to the government of the day (by November 2013, guess who?), and it is up to the government to respond in due course. And this could take some time.

But there's no doubt whatsoever that the next three to five years in the world of copyright are going to be fascinating to watch.

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