Copyright Developments Down Under: There’s a Lot Going On

The wheels of copyright change are grinding away in Australia, both through legislative review and court actions. I hesitate to call the process “copyright reform” because one person’s reform is another’s regressive step. The government has chosen the term “copyright modernisation” and a public consultation has been launched with a final submission date of July 4. The review is designed, in part, to gauge public support for copyright proposals included in a report on intellectual property issued by the Productivity Commission back in 2015 and 2016.

The draft report, which I characterized at the time as “using a sledgehammer to kill a fly”, took a draconian anti-copyright bent, proposing among other things that the term of copyright protection, currently 70 years in Australia after the demise of the author, be reduced to well below the Berne Convention minimum of 50 years to something in the range of 15 to 20 years; that an open-ended US-style “fair use” regime be introduced to allow use of copyrighted material without the permission of the rights-holder; that copyright holders be denied the right to prevent publication of their work; that parallel import of books published abroad be legalized even where an Australian company has the exclusive distribution rights, and that it be made legal to bypass and disable geo-filters used by companies such as Netflix to restrict online content access to markets where they own the rights. The title of the Productivity Commission’s chapter on copyright “Copy(Not)Right” will give you an idea of the ideological mindset of its authors.

It was a wrecking-ball approach to the concept and structure of copyright protection, designed to disrupt and destroy rather than fine-tune and strengthen.

In its response released in August 2017, the government wisely declined to adopt the more extreme recommendations of the Commission, (unworkable proposals, like the reduction of the term of copyright protection, were dropped from the Commission’s final report) but did “note” or “support in principle” some of the more controversial recommendations (fair use, circumvention of technological protection measures, geo-blocking, expansion of safe harbours) and undertook to carry out further public consultation possibly leading to the introduction of new legislation. This has already happened in the case of safe harbours. If enacted (the Bill has been passed in the Senate and is awaiting a vote in the House), this legislation will extend safe harbours to sectors beyond the current protection for Internet Service Providers (ISPs). It will include disability, education, library, archive and cultural entities but not, at this point, internet intermediaries such as search engines.

This brings us back to the current public consultation which is focussing on whether or not to add more fair dealing exceptions, and if so, which ones (in addition to offering US-style “fair use” as a possible option); how to deal with “contracting out” (i.e. how to deal with a conflict between the terms of a contract that may restrict certain uses, and copyright exceptions); and finally orphan works (where the owner of copyrighted content cannot be identified or found). Among possible new statutory exceptions to copyright protection are the following; for purposes of quotation (to clarify an existing exception), non-commercial private use, incidental or technical use, text and data mining, library and archive use, “certain educational uses” and “certain governmental uses”.

This is a considerable broadening, and while the digital age has brought new challenges, this should not be used as an excuse to drive a truck through the rules that protect copyrighted content. If more exceptions are added, the devil will be in the details. Particularly exceptions such as “incidental or technical use” and “educational uses” could be widely abused, as happened in Canada in the case of education with the introduction of a new fair dealing exception for educational purposes.

The Canadian fair dealing education exception, introduced in the Copyright Modernization Act of 2012, has led to lots of litigation; a high profile lawsuit pitting publisher’s copyright collective, Access Copyright, against institutions of higher learning whose umbrella organization, Universities Canada, introduced unilateral fair dealing guidelines based on a rough “ten percent rule” after the new Act was introduced, and a suit brought by all school boards in Ontario and most provincial ministries of education against Access Copyright for what they claim is overpayment of royalties for the period preceding the introduction of the Act in 2012. In the most high profile case, the Federal Court found that the fair dealing guidelines adopted by York University were “not fair either in their terms or their application.” (The York case was in effect the proxy for testing the Universities Canada guidelines adopted by York and other institutions). The case is now on appeal. A similar action is underway in Quebec where the French-language collecting society, Copibec, has brought a class action suit against Laval University. Both sides, the universities on one side and the publishers, authors and collective societies on the other, are now refighting this war through the mandated 5-year copyright review now underway in Canada.

Australia has dealt with the subject of educational use through a balanced approach involving a statutory licence. This licence ensures payment to authors and publishers in Australia while providing educators and educational institutions wide scope to copy digital and print material, still images and broadcast content for teaching purposes, subject to a rough “ten percent” rule. On the surface, the “ten percent” rule unilaterally implemented by Universities Canada and the Australian statutory licence “ten percent” rule seem similar. There is one large difference however. The Canadian copying guideline followed by the universities has been implemented instead of payment to authors; the Australian rule kicks in after payment to content creators.

While many would regard the statutory licence scheme as a successful model, existing Australian practices in this area are under review. As part of the Copyright Consultation a Roundtable was held on Quotations and Educational Use. Given the range of stakeholders involved it is not surprising that no consensus evolved. A new agreement under the statutory licencing scheme is under negotiation between educational institutions and collecting societies, but should that system be replaced by something different, the Canadian experience is worth remembering.

The lesson is that overly-broad, ill-defined exceptions can lead to plenty of legal wrangling. The same will be true, of course, if Australia adopts a US-style fair use doctrine where there will be endless litigation to define the meaning of fair use under Australian law.

On the issue of technical and incidental use, some participants in a separate Roundtable on this issue raised alarmist legal interpretations, such as suggesting that the limited nature of existing exceptions made running a search engine in Australia illegal and postulating that cloud computing was likely to be constrained. It is hard to imagine that this is the case as temporary copies (the kind required to make temporary reproductions which are part of the technical process of making or receiving a communication) are exempt under current law. Surely arguing for broader incidental and technical exemptions is a solution in search of a problem.

Submissions close in early July. They will then undergo analysis within government and the government’s response will be prepared and released. Meanwhile stakeholders on all sides will be lobbying hard. It will be a critical period for copyright in Australia.

On another front, Australian rights-holders are having considerable success in utilizing the new “site blocking” legislation passed in 2015 (the Copyright Amendment(Online Infringement) Bill) which provides for court orders to require ISPs to block designated offshore piracy streaming and downloading sites. A February 2018 study by research group INCOPRO showed that “Site Blocking in Australia has had a positive impact on the usage of online piracy sites, reducing the usage in Australia of the websites targeted by the blocking orders by 53.4%.” Put another way, there was an overall reduction of piracy by 25%. Here Canada could learn from Australia as no such regime exists in Canada despite a growing online piracy problem. In response a coalition of thirty content owners, ISPs, broadcasters, entertainment industry unions and others have formed the FairPlay Canada coalition and proposed a site blocking regime to the broadcast and telecommunications regulator, the CRTC. The Commission’s decision is pending after a period of public consultation.

While Australian content producers have enjoyed considerable success in obtaining court orders to block traditional offshore pirate streaming sites that have a “primary purpose” of facilitating piracy, they recently took a further step forward by securing permission to block websites that facilitate access to pirated content through an Android app. These websites in effect provide the key to unlock the set top devices (sometimes referred to as ISDs, or Illicit Streaming Devices) that offer “subscribers” access to unlicensed content, doing an end run on legitimate content providers in Australia. There boxes are proliferating on the market and are widely sold in smaller retailers.

By blocking access to the websites that enable the infringement through the boxes, the move will undercut the appeal of the boxes to consumers seeking to access unlicensed content, and will save countless hours and costs trying to track down and close small retailers engaged in selling the boxes “under the radar”. Meanwhile, according to press reports, the Australian Screen Association wants the definition of “primary purpose” to facilitate infringement widened to include “substantial purpose or effect” in order to target more infringing sites. These positive developments are happening at the same time as the broader copyright review is underway, but the site blocking legislation itself will also be reviewed.

There is clearly a lot going on Down Under in the area of copyright–developments that are of interest both to Australians and to the rest of us. Stay tuned.

© Hugh Stephens, 2018. All Rights Reserved.

This article first appeared on Hugh Stephens Blog.