The copyright debate continues with the ALRC

Australia's copyright law set to change in the digital environment.

Online users and businesses could be in the firing line by the Australian Law Reform Commission (ALRC) with its inquiry into copyright law in Australia.

While the draft terms of reference have been released by the ALRC, aiming to “provide an appropriate balance between the rights of creators ... [and] users and the public…”, some in the industry are questioning the scope of the inquiry and what ramifications it will have.

The ALRC inquiry coincides with the recent debate about two international agreements – the Anti-Counterfeit Trade Agreement (ACTA) and the Trans-Pacific Partnership Agreement (TPPA).

Matthew Rimmer, Australian National University College of Law associate professor, told Computerworld Australia that while ACTA is concerned with intellectual property enforcement, it avoids dealing with exceptions. The ALRC inquiry, however, is based on copyright exceptions. Meanwhile, the TPPA has been described as ‘ACTA on steroids’.

“I think the description of the Trans-Pacific Partnership Agreement as ACTA on steroids is a fair one. The theme is that there needs to be a change in the way in which we negotiate copyright law reform instead of having these international Trojan horses being used to push industry agendas,” Rimmer says.

“I think there is a genuine concern that the Trans-Pacific Partnership agreement may unduly limit and constrain Australian-made copyright law. I guess that is quite disturbing and worrying.”

While some people may be confused as to what each agreement covers, there are key differences. ACTA was finalised 15 April, 2011 and signed by Australia, Canada, Japan, Morocco, New Zealand, Singapore, South Korea and the US in October 2011, requiring each party to ensure there are procedures for civil and criminal enforcement against infringement breaches.

The treaty aims to combat copyright and IP issues on an international level, particularly when it comes to enforcing breaches, and not only covers the digital environment, but it also targets counterfeit goods and generic medicines.

The agreement covers 45 articles in six chapters, including: legal frameworks for enforcing IP rights, including civil and criminal enforcement and border controls for customs; institutional arrangements; and provisions which outline principles and procedures in respect of the treaty’s status and execution.

The TPPA is a proposed Pacific Rim free trade agreement, according to Rimmer, with high level commitments across several areas, including intellectual property. Australia, Brunei, Chile, New Zealand, Singapore, Malaysia, Peru, Japan, Vietnam and the US have all signed the agreement.

While the text of the TPPA has not yet been disclosed, Kim Heitman, secretary of Electronic Frontiers Australia, told Computerworld Australia it is likely to cover temporary copies, such as internet caches and RAM in computers. It is also seeking to end parallel imports, presume guilt in copyright infringement claims and introduce a three-strike rule to throw offenders off the internet.

“The IP owners are really shameless now – seeking royalties for temporary copies is likely to really harm internet services. Under these rules, Google, Facebook and Youtube would be heavily taxed by IP owners and zone marketing would be cemented in international criminal law.”

Meanwhile, the ALRC inquiry will review exceptions in the Copyright Act in the context of the digital environment, including fair dealing, the 10 per cent rule and private copying when format-shifting, time-shifting or for special purposes. It could also contemplate new exceptions - such as a defence of fair use, access to orphan works and protection for transformative uses and mash-ups, Rimmer says.

There are myriad concerns with ACTA. Rimmer says the main concern is that “secretive international negotiations [like] ACTA and the TPPA will run rough-shod over domestic law reform processes, like the ALRC inquiry, and trammel the ability of the Australian Parliament to make 'Australian-made' intellectual property law.”

Meanwhile, Heitman says the IP prohibitions in the agreement are not balanced, compared to those in the US.

“In Australia, we only have a limited set of exceptions for ‘fair dealing’ which are very out of date. For example, you can copy a video tape but not a DVD,” Heitman says.

“When technology changes, the US exception of ‘fair use’ immediately kicks in to allow consumers to use the devices they’ve bought – in Australia we have to wait until Parliament gets around to legislating for a new permitted use.

“So, under Australian law we presently have a right to back-up computer software and computer programs, but can’t breach any digital locks inserted by the IP owner to do so.”

He says ACTA also sets out guidelines but does not prescribe what and how penalties should be enforced for breaches.

“...depending on the strength of character of the government that’s entered into this agreement, you can ... take the position that it does nothing more than confirm our existing obligations under the Australia-US Free Trade Agreement,” Heitman says.

Heitman is particularly critical of the role rights owners have played in moulding ACTA, with copyright owners. “The rights owners are absolutely rapacious in what they want the copyright law to do for them,” he says.

Copyright owners are also trying to make ISPs, schools and businesses liable for what their users do on their network, Heitman says. “So effectively, if you don’t monitor your users, you’ll be liable for whatever they do. This is quite an anathema to any sort of criminal law and to the civil process,” he says.

“Secondly, they want to have all of the law enforcement about copying done by the internet service providers and by the police – they’re not making any attempts to present themselves as part of this market."

While copyright laws could have the biggest impact on consumers and users, Heitman says they have been locked out of discussions over copyright laws. He says reformations to copyright laws have also failed to take into account how the changing digital landscape has changed the concept of copyright and copyright owners are failing to adapt themselves to changing requirements from consumers. For example, he says, Australian consumers have to resort to illegally downloading music, movies and television shows because they are restricted from legally downloading them from US sources.

“The people who are making the rational decisions who use piracy are doing so in the absence of a legal alternative. If they had a legal alternative, I think that would drive out piracy very quickly indeed,” Heitman says.

“So we end up with the situation where other parts of the world are doing a much better job on copyright from a consumer’s perspective than we are."

Social media is due to come under the scope of the ALRC inquiry, with websites such as Youtube potentially in the firing line due to content such as mash-ups falling under copyright infringement. Rimmer says he would like to see content such as this fall under a defence of fair use.

“The US social networks like Facebook and Youtube and Google and Twitter have been allowed to flourish in part because there is a flexible defence of fair use in the US. I think the digital economy in Australia has been somewhat unduly constrained by a very fierce copyright regime,” Rimmer says.

“...a defence of fair use is also important in terms of allowing for a wide range of consumer uses, such as time shifting and space shifting and format shifting.”

While the ALRC is due to hand down a report no later than 30 November, 2013, Rimmer says how the recommendations are followed up can largely depend on which government is in power at the time and can take years to enact. For example, he says the last inquiry by the ALRC was carried out in 2004 and took eight years to implement recommendations from the inquiry.

“My hope is that the ALRC inquiry will be an opportunity for evidence-based policy making in relation to copyright law. There’s been a big problem with copyright law reform being driven by ideological agendas or corporate agendas,” Rimmer says.

However, Heitman says there is a danger in copyright being “formed” rather than just “tweaked around the edges”.

“I’m reminded that when ACTA was put up in Europe, we actually had the situation where people were rioting in the streets, turning over cars and setting fire to them. When you’ve got a copyright law which is as controversial as that, you’ve really got to wonder about whether the balance is right,” Heitman says.

“People don’t normally riot in the streets over a copyright act.”

Follow Stephanie McDonald on Twitter: @steph_idg

Follow Computerworld Australia on Twitter: @ComputerworldAU

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