Reform or crackdown: Fixing Australian copyright law

It seems Australia is going to be subjected to another politically inspired attempt to deal with internet piracy. But at what cost?

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It seems Australia is going to be subjected to another politically inspired attempt to deal with Internet piracy. Attorney-General George Brandis has motivated this move by claiming that the

“success achieved by The Great Gatsby has lead to piracy of the film, placing the sustainability of our screen industry at risk”

This risk apparently didn’t stop the movie from making US $351 million so far from a production budget of US $105 million.

It seems Mr Brandis’ view of the Copyright Act is somewhat confused simultaneously criticising it as “overly long, uncessarily complex, often comically outdated and all too often, in its administration, pointlessly bureaucratic” and stating that the “rights of creators and owners did not change with the advent of the Internet and will not change with the invention of new technologies.”

But this is exactly the point. The internet has changed the way we deal with content and it has changed far more rapidly than the current laws will allow. Fundamentally, this is the argument that is behind calls for a change in Australian copyright law to adopt the US concept of “fair use”. This was one of the proposals put forward in a report on Copyright and the Digital Economy by the Australian Law Reform Commission last week. They outlined that the provisions in the current copyright act are restrictive and could provide a barrier to innovation.

Changes to what is allowed under “fair dealing” provisions have to be made by parliament in the act rather than adopting the US approach of fair use which allows for interpretation by the courts based on four factors. These factors ask: “the purpose and character of the use”, “the nature of the copyrighted work”, “the amount and substantiality of the portion used in relation to the copyrighted work as a whole”, and the “effect upon the market for or value of the copyrighted work”.

The arguments against changing the act were unsurprisingly largely made by those organisations enforcing copyright today including the trade groups of the software, newspaper, film and tv industries. Those in favour of the change the act were the tech companies like Google and Yahoo!7. The argument is often made that Google would not have been able to start its search business in Australia (or the UK) because the copyright act would have prevented it from keeping cached copies of web pages.

The problem with copyright law is that it lags not only technical innovations but also what is termed the “de facto” application of copyright. In other words, society is already behaving collectively to determine what they consider fair and reasonable. People were recording music on tapes and CDs long before it was deemed acceptable and a special exception was added to the copyright act in 2006.

Educators already photocopy or make parts of books available to students in the mistaken belief that this allowable under the current law - it isn’t - students should be photocopying the portions of the books themselves as the law only allows only for private use.

And of course, millions of people already download movies and TV shows in most cases, not to avoid payment but simply because they want to be able to see something that has had a restricted or delayed release. Australians were amongst the most prolific downloaders of the TV series Game of Thrones principally because it allowed people to watch it shortly after it was released in the US. Of course, HBO is extremely profitable and the piracy of Game of Thrones has only served to increase interest in the show.

Given the studied inactivity of the current government in matters relating to innovation (as evidenced by the lack of progress on reviews of the NBN and eHealth), it is unlikely that they will push for a legislative framework that would support it and so it seems unlikely that much will change with the copyright act in the near future. However, moves to censor the internet will continue to be resisted by the people and fortunately, the people will continue to find ways to innovate around obstacles trying to preserve the status quo.

David Glance does not work for, consult to, own shares in or receive funding from any company or organisation that would benefit from this article, and has no relevant affiliations.

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